Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 218, Novembre 1982

1. 298. The complaint of the International Confederation of Free Trade Unions (ICFTU) of violations of trade union rights in Sierra Leone is contained in a communication dated 17 March 1982. Additional information was supplied by the complainant in communications dated 17 April and 13 May 1982. The Government sent its observations in communications dated 29 April and 15 October 1982.
2. 299. Sierra Leone has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98 ).

A. The complainant's allegations

1. 300. In its communication of 17 March 1982, the ICFTU alleges that James Kabia, the Secretary-General of the Sierra Leone Labour Congress, has been suspended from office and banned from trade union activities by order of Parliament. It states that the same order dissolved the executive council of the Sierra Leone Labour Congress.
2. 301. In its letter of 17 April 1982, the complainant refers to a judicial commission of inquiry set up in this case, claiming that such a commission does not meet freedom of association standards which require, in cases of removal from office of trade union leaders for alleged infringement of union rules (as is claimed by the Government in this case), that proper judicial proceedings take place through the courts, with the right of appeal. The complainant further alleges that no proper judicial proceedings have taken place as regards the removal of the leadership of the Sierra Leone Labour Congress.
3. 302. According to the complainant's communication of 13 May 1982, the President of Sierra Leone, in exercise of the powers conferred upon him by sections 2 and 6 of the Commission of Inquiry Act, appointed a commission of inquiry with the following terms of reference: (1) "to inquire into the status, administration and activities of the Sierra Leone Labour Congress from 1976 following the amalgamation of the then Sierra Leone Labour Congress and the Sierra Leone Council of Labour", (2) "to inquire into all aspects of industrial relations in Sierra Leone and to make recommendations for any improvement which it may consider necessary". The complainant points out that under section 5 of the above-mentioned Act, the commissioners are empowered to "make a full, faithful and impartial inquiry into the matter specified in such commission, and conduct such inquiry in accordance with the directions, if any, in the Commission; and in due course to report to the President, in writing, the results of such inquiry and also when required, to furnish to the President a full statement of the proceedings of such commission, and of the reasons leading to the conclusions arrived at or reported ...".
4. 303. The complainant states that in view of these stipulations, the commission is of limited jurisdiction and function. It acted, however, in excess of its jurisdiction when, on 10 March 1982, it ordered: (1) the dissolution of the executive of the Labour Congress and the installation of a caretaker Committee as from that date, under the supervision of the Ministry of labour, comprising one member nominated by each of the financial unions affiliated to the Labour Congress; (2) the handing over of the Labour Congress's property to the caretaker Committee; (3) the suspension from office of Mr. Kabia, the immediate cessation of his trade union activities and the prohibition of his participation in the caretaker Committee. According to the complainant, Mr. Kabia was so treated for - in the commission's opinion - "inciting remarks and issuing inflammatory statements to workers which ... are not conducive to the maintenance of law and order".
5. 304. The complainant indicates that the Commission's reason for dissolving the executive - namely, "that the lifetime of the Executive ... expired on 27 October 1981, thereby rendering its present existence unconstitutional" - is unfounded. It supplies a copy of the Constitution of the Sierra Leone Labour Congress, articles IV(1) and V(1)2 of which make adequate provision for there to be no constitutional vacuum when, due to exigencies of time and circumstances, the four-year interval between delegates' conferences stretches beyond the exact time mentioned in the Constitution. That is to say, the fact that a conference is not held during the month of October, four years after the last conference, does not render the existence of the executive council unconstitutional. Moreover, according to the complainant, as the Constitution does not make any provision that the executive council shall be elected at the delegates' conference, it is erroneous to link the constitutionality of the existence of the executive with the holding of a conference.
6. 305. Lastly, the ICFTU points out that as there is no constitutional provision for any caretaker Committee, that Committee has no power to interfere in any matter which ought to be dealt with by the executive council, such as the terms and conditions of employment of the Secretary-General of the Labour Congress between conferences. Therefore his suspension has no legal basis and is void.

B. The Governments reply

1. 306. In its communication of 29 April 1982, the Government describes the complaint as inaccurate and misleading. It explains that, as a result of an illegal general strike called by the Labour Congress in September 1981, the Government appointed a judicial Commission of Inquiry (whose terms of reference are cited above in the complainant's allegations). During the course of its sittings, the Commission discovered that the term of office of the then executive council had expired. It accordingly ordered its dissolution and the formation of a caretaker Committee, which is now performing the normal duties of the executive. The Government states that the caretaker Committee proposes to conduct elections for a new executive very soon.
2. 307. According to the Government, during the course of the sittings, the Commission had cause to issue warnings to Mr. Kabia who was conducting himself in a manner and making statements that were calculated to prejudice the proceedings of the Commission. The Government attaches a copy of Mr. Kabia's 1982 New Year message which it claims was tantamount to contempt of a judicial commission which was still in session when the message was published. As a result of this, states the Government, the Commission had to suspend Mr. Kabia from trade union activities.
3. 308. Lastly, the Government points out that apart from the situation set out above, all trade unions and the Labour Congress continue their normal activities with the usual support of government.
4. 309. In its communication of 15 October 1982, the Government points out that, in its statement on the report of the Commission of Inquiry, it rejected the Commission's recommendation to bar Mr. Kabia from all trade union activities as from 10 March 1982 on the grounds that such a matter "is outside the terms of reference of the Commission". As regards the dissolution question, the Government states that, on 1 October 1982, a newly elected executive of the Sierra Leone Labour Congress took office. It adds that affiliate unions have also been holding elections in accordance with the provisions of their individual Constitutions, and that trade union activities have once again returned to normal throughout the entire nation.

C. The Committee's conclusions

1. 310. The Committee notes that this case involves the dissolution in March 1982, by order of a government-appointed judicial commission, of the executive of a trade union federation and the establishment of a caretaker Committee, as well as the suspension from all trade union activities of the Secretary-General of that federation, Mr. James Kabia. The Committee moreover notes the complainant's assertion that the judicial Commission itself does not meet the standards required in such freedom of association matters, and that its orders are ultra wires of its jurisdiction and function as laid down in the Commission of Inquiry Act and the in the Commission's terms of reference. It is to be noted that the Government considered that the order affecting Mr. Kabia was equally outside the terms of reference of the Commission.
2. 311. As regards the complainant's general allegation that the government-appointed Commission of Inquiry does not meet the standards required in freedom of association matters and, in addition, that its orders are ultra vires, the Committee notes that no specific allegations are made regarding the Government's motives for establishing the Commission of Inquiry or regarding the independence or impartiality of the Commission or its members. On these questions the Committee considers that the establishment of an independent and impartial judicial Commission of Inquiry by the Government to examine and report on the trade union situation in a country is not in itself in violation of the principles of freedom of association. As for any decisions or recommendations made by such a Commission, the Committee considers that it is not competent to decide whether or not such recommendations or decisions were made ultra vires of the terms of reference with which the Commission was entrusted. The Committee is, however, competent to examine the degree of conformity of any such decisions or recommendations with the principles of freedom of association and will, accordingly, proceed to examine the substance of the orders issued by the Commission concerning which allegations have been made.
3. 312. As regards the dissolution of the trade union executive and replacement by a caretaker Committee, the Committee first notes with interest the Government's statement that on 1 October 1982 a newly elected executive took office. It also notes from an examination of the Constitution of the Sierra Leone Labour Congress that the previous executive was apparently entitled to continue in office until the next meeting of the delegates, but that it was at fault in not organising the delegates' meeting within the time period stipulated in the Constitution. The question therefore arises as to whether the order made by the Commission dissolving the previous executive was justified on the grounds that the union's Constitution was infringed. While recognising that certain events are of an exceptional kind and may warrant intervention by the authorities, the Committee has considered that the taking over of a trade union must be based on serious and duly demonstrated reasons, and must be temporary and aimed solely at the organisation of free elections. The Committee, in the present case, observes that (a) the caretaker Committee was comprised of one member nominated by each of the paid-up unions affiliated to the Labour Congress, which is a composition similar to article V(2) of the Constitution of the Congress; (b) according to the Government, the caretaker Committee had been performing the normal trade union activities of the executive, apparently without government interference; (c) according to the Government, the newly elected executive Committee took office on 1 October 1982, less than seven months after the dissolution order came into effect.
4. 313. In all these circumstances, the Committee considers that the Commission of Inquiry, as a judicial body, was entitled to determine whether or not the Constitution of the union had been fully respected and that the order to appoint a new caretaker executive comprising freely elected members of affiliates of the Congress was not such as to constitute an infringement of the principles of freedom of association.
5. 314. As regards the removal of the trade union leader, James Kabia, and the order prohibiting him from undertaking any trade union activities, the Committee observes that the 1982 New Year Message was not made during the commission's proceedings nor does it contain any specific or implicit mention of the Commission It accordingly fails to see how such a message could be interpreted as being in contempt of the Commission and justifying the total prohibition of Mr. Kabia's trade union activities and, in particular, of participation in the caretaker Committee. The Committee takes note of the Government's statement according to which this order was made outside the Commission's terms of reference but observes that no steps appear to have been taken to redress the situation. The Committee understands that the rejection by the Government of the Commission's recommendation to bar Mr. Kabia from all trade union activities means that he is free to resume his trade union activities in the country. The Committee requests the Government to confirm that this understanding is correct.