Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 311, Novembre 1998

Effect given to the recommendations of the Committee and the Governing Body

1. 85. During its last examination of this case at its meeting in May-June 1998, the Committee urged the Government to take the necessary measures to ensure that the Industrial Relations Bill would be adopted in the near future and that, in its final form, it would maintain the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. Furthermore, the Committee once again urged the Government to repeal section 12 of the 1973 Decree and to ensure that the 1963 Public Order Act be amended so that it could no longer be used for the purpose of oppressing legitimate and peaceful strike action. Finally, the Committee once again urged the Government to establish independent investigations into the death of the 16 year-old schoolgirl killed by a stray bullet during the January 1996 stay-away, the abduction of Jan Sithole in August 1996 and the dismissal of Jabulani Nxumalo. (See 310th Report, para. 591.)
2. 86. In a communication dated 22 September 1998, the Government indicates that Cabinet passed the Industrial Relations Bill on 5 August 1998 (now Bill No. 13 of 1998) and that, in its present form, it maintains the major changes which had been introduced in response to previous recommendations (a copy of the Bill was provided). This Bill, however, could not be referred to Parliament as the latter was dissolved within the statutory 30 days of the Bill's publication. Other legislative procedures were procured, however, and the Bill has since been referred to the Council of Ministers which began its debate thereon on 15 September. As concerns the 1973 Decree and the 1963 Public Order Act, the Government indicates that the concerns raised by the Committee should be addressed by the Industrial Relations Bill once it becomes law. As concerns the independent investigations requested by the Committee, the Government believes that it has adequate facilities in the Royal Swaziland Police to carry out such investigations and has not yet decided on the establishment of an independent investigation. As concerns Mr. Jabulani Nxumalo, the Government indicates that it had no responsibility for his dismissal nor any legal authority or knowledge of his engagement or dismissal. In addition, Mr. Nxumalo, according to the Government, does not insist on reinstatement with his former employer, with whom he presently has business dealings. According to the Government, he does not appear to desire reinstatement.
3. 87. The Committee takes note of this information. It notes in particular that the Industrial Relations Bill has been passed by Cabinet and is currently being debated in the Council of Ministers. The Committee must once again expresses the firm hope that this Bill will be adopted in the very near future and that, in its final form, it will ensure full respect for the principles of freedom of association and requests the Government to keep it informed in this regard. As concerns the Government's statement that any difficulties having arisen from section 12 of the 1973 Decree on the rights of organizations and the 1963 Public Order Act will be resolved as soon as the Industrial Relations Bill becomes law, the Committee indeed notes that the 1973 Decree and the 1963 Act, while concerning more generally mass actions which would result in a disturbance of the peace, had been used in the past to suppress strike action which would appear now to be granted by way of right in the Industrial Relations Bill. Furthermore, section 103(1) of the Bill provides that a person holding a public office, or acting or purporting to act on behalf of anyone holding such office, shall not exercise any power conferred by or under any law in such a way as to impede the exercise of rights conferred or recognized by this Act. The Committee expresses the firm hope that, with the passage of this Bill, the 1973 Decree and the 1963 Public Order Act will no longer be used to suppress legitimate trade union activities.
4. 88. Regarding the call to establish an independent investigation into the death of a 16 year-old schoolgirl during a mass stay-away and the abduction of Mr. Sithole, while noting the Government's indication that it considers an investigation by the police to be sufficient, the Committee first notes that it has not been informed of the outcome of any investigations into either of these matters which occurred over two years ago. Secondly, given that the allegations in the original complaint queried the police involvement in these incidents, the Committee considers that an independent inquiry into these matters would be necessary to assure the parties that all elements were considered without any bias and to ensure full confidence in the conclusions drawn. In the light of these considerations, the Committee would once again urge the Government to establish independent investigations into these two matters and to keep it informed of the outcome. Finally, the Committee notes from the Government's reply that, whil
   • e indicating that Mr. Nxumalo does not desire to be reinstated in his post, it would appear that there has not been an investigation into the reasons for his dismissal. While further noting the Government's indication that it was not involved in the recruitment or in the dismissal of Mr. Nxumalo, the Committee would recall that it is the responsibility of the Government to ensure that the principles of freedom of association are respected throughout its territory. The Committee would recall, in this respect, that it has been alleged that Mr. Nxumalo was dismissed because of his trade union activity, in violation of the principles of freedom of association. The Committee would once again request the Government to investigate the circumstances surrounding Mr. Nxumalo's dismissal and, in the event it is determined that he was dismissed because of his trade union activity, to ensure that he is appropriately compensated, if indeed he does not wish to be reinstated. The Committee requests to be kept informed of the measures taken in this regard.