Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 313, Mars 1999

1. 220. On 18 July 1998, the Force ouvrière togolaise (FOT) submitted a complaint of violation of trade union rights against the Government of Togo.
2. 221. The Government supplied its observations in a communication dated 21 October 1998.
3. 222. Togo 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. 223. The Force ouvrière togolaise (FOT) states that on 5 April 1995, in accordance with the relevant legislation, its by-laws were filed at the Office of the Attorney-General, with the General Directorate of Labour and Social Legislation and at Lomé City Hall. The FOT recalls that under section 5 of Ordinance No. 16 of 8 May 1974 issuing the Labour Code ("the Labour Code"), a trade union whose by-laws have been duly filed comes into existence in legal terms three months after the date of filing; the FOT maintains that it, therefore, has existed legally since 7 July 1995.
2. 224. The complainant adds that its recognition by the authorities was never in any doubt during its first year of existence; it supports its claims with various items of correspondence and documents which show among other things that between May 1995 and December 1996 it was involved in a number of activities organized by the Government and other organizations for the promotion and defence of human rights.
3. 225. The complainant maintains, however, that the situation changed in 1996; since that time, the organization has been subjected to persecution by the authorities -- in particular because of its protests concerning the appointment of Workers' delegates to the 83rd Session of the International Labour Conference in June 1996 -- and has no longer been involved in various activities at the national level on the grounds that it has no official confirmation that its by-laws have been filed.
4. 226. Despite writing to the Minister of the Interior and Decentralization in September 1995 in order to obtain the official confirmation provided for in the law, the FOT has still received no reply. The FOT considers that the Government's attitude violates its international obligations with regard to freedom of association.

B. The Government's reply

1. 227. In its reply, the Government addresses the issues of the legal existence of the complainant, its non-involvement in various activities at national level and the persecution which it claims to have suffered from the authorities.
2. 228. As regards the legal existence of the FOT, the Government maintains that it has no true legal existence owing to the circumstances in which the organization's constituent congress took place. The Government explains that only 12 activists were present at the opening ceremony of the constituent congress and only seven at the closing ceremony. Furthermore, neither the national executive nor the report on which the work of the congress was based were presented to the Minister's representative on that occasion. For these reasons, the Government is surprised that the complainant, which does not carry out any grass-roots activities, should have protested at the appointment of Workers' delegates to the 83rd Session of the International Labour Conference in June 1996.
3. 229. However, in view of the fact that the complainant complies with the provisions of section 5 of the Labour Code, the Government states that the authorities have agreed to collaborate with it. It was on this basis that the different communications which the complainant has used to support its complaint were addressed to it.
4. 230. The Government denies failing to meet its international obligations with regard to freedom of association and maintains that if the complainant considers that it has problems, these are connected, not with its legal existence or failure to obtain an official receipt for its by-laws, but with its well-known inability to organize any activities or training or awareness-raising seminars for its members.
5. 231. As regards the non-involvement of the FOT in various national-level activities since 1995, the Government points out the discrepancies between the complainant's allegation in this respect and the correspondence that took place between May 1995 and December 1996, which was attached to the complaint. The Government states that throughout 1996, which coincided with the period during which the General Secretary of the FOT was removed from the public sphere, the FOT retreated behind a wall of silence which made it difficult to believe that it still existed.
6. 232. Lastly, with regard to the persecution which is said to have been suffered by the complainant and its leaders, the Government considers that this allegation is without foundation and the complainant has provided no evidence to support it.
7. 233. The Government concludes by pointing out that it respects the provisions of the freedom of association Conventions which it has ratified and reaffirms its commitment to complying with them, and states that the General Secretary of the FOT should refrain from blaming the Government for the results of its own failings.

C. The Committee's conclusions

1. 234. The Committee notes that the allegations contained in the complaint refer in particular to the right of workers and employers to establish organizations without previous authorization or interference by the public authorities (Article 2 of Convention No. 87 ratified by Togo).
2. 235. The Committee notes that under the relevant provisions of the Togo Labour Code, trade unions can be established freely for purposes of study and defence of the economic, industrial, commercial, agricultural and occupational interests of persons engaged in the same occupation, or in similar or related occupations (see Labour Code, sections 3 and 4).
3. 236. As regards the formal requirements which must be observed by trade union organizations at the time of their establishment, section 5 of the Labour Code provides that "under penalty of annulment, the founders of any trade union shall file the union's by-laws and the names of those responsible in one capacity or another for administering or leading the union". The provision states further that "the by-laws shall be filed in quadruplicate at the City Hall or at the headquarters of the administrative district where the union in question is established, and one copy of the by-laws shall be sent to the labour and social legislation inspector and one copy to the Attorney-General". A receipt is to be issued not later than three months thereafter. Once that period has elapsed, the union is considered to have a legal existence (end of section 5).
4. 237. The Committee recalls that it has always considered that the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the provisions of the freedom of association Conventions provided, of course, that the provisions in question do not impair the guarantees laid down in those Conventions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 247).
5. 238. More specifically, these formalities must not be used by the public authorities in such a way as to hinder the legitimate activities of a duly constituted trade union organization; this would amount to authorizing interference by the public authorities in the activities of trade unions and would not be compatible with the principles of freedom of association. In other words, these prescriptions and formalities must not amount in practice to previous authorization, nor constitute an obstacle to the establishment of an organization to the extent that it is tantamount to a prohibition pure and simple (see Digest, op. cit., paras. 249 and 259). Moreover, the Committee notes that, according to the Government, neither the national executive board of the FOT nor the report on which the work of the constituent congress of this organization was based were presented to the Government representative when the congress took place. The Committee recalls that such requirements, in order to be in conformity with the above-mentioned principles of freedom of association, must constitute merely a formality to ensure that those rules are made public.
6. 239. The Committee notes that the complainant appears a priori to have complied with the formal requirements which must be met if an organization is to have any claim to lawful existence under Togolese law. Furthermore, the Committee notes that the complainant is said to have been involved in various activities organized by the Government in 1995 and 1996, including participation in the tripartite negotiations which were held in May 1995 between the Government, the National Employers' Council (Conseil national du patronat) and the unions.
7. 240. If the formal requirements laid down for the establishment of a trade union are satisfied, the trade union thus established must be able to carry on its legitimate activities without interference by the public authorities, in particular with regard to the manner in which its meetings are held.
8. 241. In addition, the Committee takes note of the Government's observations concerning the complainant's representativeness. While the Committee does not have the information needed to assess the representativeness of the complainant, it is bound to point out that the right to form trade union organizations freely and the recognition of a given union's representative status according to objective, predetermined and precise criteria are two separate issues; moreover, recognition of the representative status of certain unions for the purpose of granting varying privileges and advantages must not result in the de facto prohibition of other trade union organizations which do not meet those criteria, thus depriving workers of their fundamental right to establish or join organizations of their own choosing.
9. 242. Under these circumstances, the Committee requests the Government to take all necessary measures to ensure that lawfully constituted Togolese trade unions, including the complainant, can carry on their trade union activities without previous authorization or interference by the public authorities and that, in accordance with section 5 of the Labour Code, the receipt for the filing of the complainant's by-laws is issued. The Committee requests the Government to keep it informed of any measures taken in this regard.