Rapport intérimaire - Rapport No. 28, 1958

1. 240. The Committee examined this case at its 18th Session (Geneva, October 1957) when it formulated certain recommendations to the Governing Body, which were approved by the Governing Body at its 137th Session (Geneva, October-November 1957).
2. 241. In particular, with respect to certain allegations relating to arrests or restrictions on the movements of trade union leaders in Northern Rhodesia, the Governing Body decided, on the recommendation of the Committee:
   • (i) to draw the attention of the Government of the United Kingdom to the view already expressed by the Committee and endorsed by the Governing Body that the restriction of a trade union officer's movements, including the prohibition of his entry into areas in which his trade union operates and in which he normally carries on his trade union activities, is inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should be accompanied by adequate judicial safeguards applied within a reasonable period ;
   • (ii) to request the Government to furnish information as to what judicial safeguards are available to the trade union officers whose movements are restricted, including information as to the nature of the Advisory Committee referred to in the Government's latest reply, and the extent to which measures are being taken or are envisaged to lift the restrictions so that such trade union officers may resume their trade union functions in full freedom.

A. A. The complainants' allegations

1. 242. In response to the Governing Body's request for information the Government of the United Kingdom, in a communication addressed to the Director-General on 31 January 1958, made the following observations:
   • The treatment of persons whose movements are restricted is now regulated by the Emergency (Transitional Provisions) Ordinance, 1956. Under section 4 of that Ordinance, any emergency restriction order which was in force when the state of emergency ended on 1 January 1957 continued to have full force and effect for a further period of one calendar month and could be extended for a maximum period of six months. During that six-monthly period, each emergency restriction order was reviewed to see whether the person concerned should be made subject to a restriction order under section 9 of the Emergency (Transitional Provisions) Ordinance, 1956. These Orders were made by the Governor after studying a report on each person by the Commissioner, a Judge of the High Court appointed under section 3 of the Ordinance, to whom the persons concerned were required to show cause why a restriction order should not be made after each had been given a statement of the case against him and allowed to call his own witnesses and cross-examine the Government witnesses either himself or through his legal representative. In this process, each restricted person was given the fullest facilities to enable him to present his case in the best possible light. The restriction order is subject to periodical review, for section 10 of the Ordinance provides that at the end of each six-monthly period after the issue of the restriction order the Commissioner shall review all the circumstances relating to the order and make a report to the Governor. When the Commissioner is about to make a review he must notify the restricted person concerned and inform him that he may submit any written representations he wishes for consideration. If the Commissioner considers it desirable, he may hold a public hearing into the matter, when again the restricted person will have the right to call his own witnesses and cross-examine the Government witnesses, either himself or through his legal representative. The Commissioner began his review of the current restriction orders on 7th January 1958, and will, in due course, submit his report to the Governor.
   • The Advisory Committee referred to in paragraph 416 (a) (ii) of the 27th Report of the Committee on Freedom of Association was appointed under Regulation 16 (7) of the Emergency Powers Regulations, 1956, and when the state of emergency was lifted this Committee ceased to function. When it was operative, however, its Chairman was a Judge of the High Court, Mr. Justice Windham, and of its other two members one, an African of Northern Rhodesia, was President of the Urban Native Court in Lusaka and a member of the Urban Native Appeal Court for the Southern Area of the territory, and the other had had long experience as an independent member of Wages Councils in the territory. Mr. Justice Windham is now the Commissioner appointed under Section 3 of the Emergency (Transitional Provisions) Ordinance, 1956.
   • In addition to the statutory review of restricted persons mentioned above, it should be made clear that the position of each person who continues to be restricted is kept continuously under review and appropriate action is taken as soon as it is thought, having regard to their present conduct and activities, that any of these persons could either be permitted to return to the Copper Belt or could be permitted a wider field of activity than is at present allowed without a definite risk to the maintenance of law and order. Restriction orders have been relaxed to the maximum extent possible without endangering the public interest or good government.

B. B. The Committee's conclusions

1. 243. In its 27th Report, the Committee noted a statement by the Government that each of the restriction orders affecting the trade union leaders concerned in this case was issued after a report had been received from an Advisory Committee, which first took account of the objections pleaded before it by the persons concerned. The Committee also noted, from the observations furnished by the Government, that in May 1957, some eight months after measures were first taken against the trade union leaders concerned, the restrictions on their movements and, in particular, the prohibition on their entry into the areas where their trade union operated and they normally carried on their trade union functions, were still being maintained although no charges had been brought against them or were contemplated. It was for these reasons that the Committee made the recommendations to the Governing Body which were contained in paragraph 416 (a) (i) and (ii) of its 27th Report and which are quoted in paragraph 241 above.
2. 244. In its latest reply the Government explains that the Advisory Committee consisted of a Judge of the High Court, as chairman, the African President of an Urban Native Court who was also a member of an Urban Native Appeal Court, and a third person who had had long experience as an independent member of wages councils.
3. 245. Since the state of emergency ended on 1 January 1957 Mr. Justice Windham, previously the chairman of the Advisory Committee, has reported on cases to the Governor as sole Commissioner. A further review of restriction orders by the Commissioner, who will report in due course to the Governor, began on 7 January 1958.
4. 246. The present procedure provides for reviews of cases by a Commissioner, who is actually a High Court Judge, and each person concerned is invited to show cause, either at a private or public hearing, as the Commissioner decides, why a restriction order should not be made against him. At the hearing the person concerned may call witnesses and cross-examine the Government's witnesses, either personally or through his legal representative.
5. 247. The Government states that continuous consideration is also given to the cases of the persons concerned with a view to their being permitted to return to the Copper Belt, or at least, to their enjoying greater freedom than at present, if circumstances so warrant. According to the Government, restriction orders have been relaxed to the maximum extent possible without endangering the public interest.
6. 248. In view of the Government's explanation that the Commissioner who has assumed the former responsibility of the Advisory Committee in reporting on cases to the Governor is a High Court Judge and that, before the Commissioner makes his report, the persons concerned may, personally or through their legal representatives, plead their cases before him, call witnesses and cross-examine the Government's witnesses, the Committee notes that the recommendation of the Governing Body that there should be an inquiry of a judicial character into the matters at issue is fulfilled by the procedure followed in Northern Rhodesia.