Informe provisional - Informe núm. 391, Octubre 2019

1. 533. The Committee last examined this case (submitted in April 2014) brought by several public service unions, during its meeting in March 2018 and on that occasion presented another interim report to the Governing Body [see 384th Report, approved by the Governing Body at its 332nd Session (March 2018), paras 233–249].
2. 534. The Government provided partial information in a communication dated 7 June 2018.
3. 535. The Democratic Republic of the Congo 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. 536. During its previous examination of the case in March 2018, the Committee made the following recommendations [see 384th Report, para. 249]:
   • (a) The Committee deplores the total lack of cooperation on the part of the Government in the proceedings, in particular the fact that it has communicated none of the information requested on several occasions, including through urgent appeals. Despite the time that has elapsed since the presentation of the complaint, the recommendations made by the Committee in November 2015 and November 2016, a meeting between members of the Committee and a Government delegation in June 2016, and an invitation to come before the Committee pursuant to paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, the Government has to date not provided any reply to the complainant organizations’ allegations or the Committee’s recommendations. The Committee urges the Government to be more cooperative in the future, especially since it recently benefited from technical assistance from the Office and the International Training Centre in Turin.
   • (b) The Committee urges the Government to take without delay the necessary steps to review the contested 2013 decrees of the Ministry of Public Service in consultation with the relevant workers’ organizations. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee must urge the Government once again to undertake, without delay, consultations with all the representative workers’ organizations concerned, including the INSP and the SIAP, on ways of representing workers’ interests in collective bargaining in the public administration. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government to provide the founding document of the INAP and the handover document between the former inter-union association (INSP) and the INAP and to report its observations on the matter.
   • (e) The Committee expects the Government to issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee urges the Government to conduct investigations on the aforementioned disciplinary action cases against trade union leaders in order to determine if they were punished for lawfully exercising their trade union activities and, if appropriate, to award compensation that sufficiently discourages further disciplinary action.
   • (f) Noting that Mr Muhimanyi and Mr Endole Yalele filed a complaint before the appeals court for the violation of the legal time limit for concluding a disciplinary case, the Committee urges the Government to keep it informed of the result of this complaint.
   • (g) The Committee urges the Government to conduct without delay an investigation into the circumstances behind the arrest and detention of trade union leaders in July 2013 and November 2014 and to keep it informed of the findings and follow-up action.
   • (h) The Committee urges the Government to keep it informed of the status of the complaint filed by Mr Modeste Kayombo-Rashidi with the Kinshasa/Gombe prosecution authorities against Mr Constant Lueteta, INAP Secretary, for having made death threats.
   • (i) The Committee urges the Government to inform it of the follow-up given to the administrative and judicial appeals brought by the complainants.
   • (j) Firmly recalling that trade union leaders should not be subject to retaliatory measures, and in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, including for having lodged a complaint with the Committee on Freedom of Association, and underlining the importance of ensuring that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of pressure, fear and threats of any kind, the Committee urges the Government to provide detailed information without delay on the reasons for and the status of the dismissals and disciplinary action against the following trade union leaders and members: Mr Nkungi Masewu, President of SYAPE; Mr Embusa Endole, President of ESPOIR; Mr Gongwaka, trade union leader; Mr Kaleba, President of the CCT/Finance union committee; and Mr Kalambay, coordinator of COSSA. Noting with concern that fresh allegations have been made of harassment of trade union leaders since it last examined the case, the Committee requests the Government to provide information on the situation of Mr Mulanga Ntumba, General Secretary of SAFE, and Mr Tshimanga Musungay, General Secretary of RESYCO.
   • (k) The Committee urges the Government to provide without delay detailed information in response to the allegations that trade union leaders in the public service have been subjected to disciplinary measures, including dismissal, and particularly on the reasons given to justify the termination in May 2016 of the President of the SYAPE, Mr Nkungi Masewu.
   • (l) The Committee invites the Government to a meeting with representative members during the next session of the International Labour Conference (May–June 2018) in order to obtain detailed information on the measures taken in relation to this case.

B. The Government’s reply

1. 537. In its communication dated 7 June 2018, the Government objects to the contents of the allegations made against it.
2. 538. With regard to the ministerial decree No. 16 of 1 July 2013 on the regulation of trade union activities in the public administration, the Government indicates that, before the first public administration trade union elections were organized, a joint preparatory commission had been set up to prepare the regulatory texts pertaining to them. That commission was made up of all the trade unions that had requested to be involved, that is to say the INSP and the SYAPE. The Government believes that the allegations denouncing the authority of the delegates in the said commission are unfounded and that the INAP leaders concerned really are officials from the most representative trade unions of the public administration according to the results of the 2013 trade union elections.
3. 539. The Government also rejects the allegations of threats made against Mr Kayombo-Rashidi by Mr Lueteta, INAP Secretary, and notes that the parties have reconciled.
4. 540. The Government states that there is effective social dialogue between the Government and 60 public administration trade unions grouped under the INAP. It also notes that the reason the complainant trade unions contest the aforementioned ministerial decree No. 16 of 1 July 2013 and ministerial decree No. 19 of 1 July 2013 on the Electoral Code is because they did not receive enough votes to become members of the Board of Directors of the INAP.

C. The Committee’s conclusions

1. 541. The Committee takes note of the information provided by the Government. It however deeply regrets that its partial and very general nature does not provide a substantive response to the allegations presented by the complainants, especially given the time that has elapsed since the complaint was brought. The Committee believes that the report remains valid with regard to the matter of regulating trade union activities in the public administration, as well as the death threats made towards Mr Kayombo-Rashidi and the complaint he filed with the Kinshasa/Gombe prosecution authorities. While noting that, according to the Government, Mr Kayombo-Rashidi and Mr Lueteta have reconciled, the Committee requests the Government and the complainant to indicate whether a judicial appeal is still ongoing and, if so, to keep it informed of any decision handed down.
2. 542. The lack of substantive cooperation from the Government is all the more concerning since the Committee, during its previous examination of the case, had drawn the Government’s attention to fresh allegations of harassment towards trade union leaders and members received from the complainant organization in May 2016, which have also gone unanswered. The Committee urges the Government to demonstrate greater cooperation in the future and firmly recalls that, while the procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning the allegations brought against them. The Committee invites the Government to accept a mission to clarify all the outstanding issues in this case.
3. 543. In view of the foregoing, the Committee finds itself once again obliged to refer the Government to its conclusions from its last examination of the case [see 384th Report, paras 241–248] and to recall all of its previous recommendations.