SWAZILAND (ratification: 1978)
The Government provided the following written infor-mation.
There has been remarkable progress in dealing with the issues raised by the ILO in the 2015 report of the Com-mittee of Experts. The progress on the issues is as set out below. Concerning the amendment of the Industrial Rela-tions Act to allow for registration of federations, that amendment has been effected through the Industrial Rela-tions (Amendment) Act No. 11 of 2014 and is now law.
Following the enactment of the amendment, the Trade Union Congress of Swaziland (TUCOSWA), the Federa-tion of Swaziland Employers and Chamber of Commerce (FSE–CC), and the Federation of the Swaziland Business Community (FESBC) are now duly registered. The usher-ing in of the amendment has created an interest from other labour market formations to form federations, hence some requested to attend the 104th Session of the Conference as observers. The Government is fully committed to ensur-ing the full operationalization of all tripartite structures. It is in this regard therefore that, immediately following their registration, we have held a tripartite consultation meeting with the federations where the agenda of the 104th Session of the ILC and other issues were discussed. The Ministry of Labour and Social Security has also in-vited the federations to nominate members to serve on all statutory boards.
Concerning the amendment of the Industrial Relations Act to ensure that criminal and civil liability penalties do not impair the right to freedom of association (sec-tions 40(13) and 97), this issue has been dealt with in the Industrial Relations (Amendment) Act No. 11 of 2014 by amending the Act to ensure that civil and criminal penal-ties do not impair the right to freedom of association. In addition, in consultation with the ILO and following a review by the social partners and other stakeholders in July 2014, the Code of Good Practice was sent to the At-torney General for further review. At the meeting between the Government and the social partners, soon after their registration, the revised Code was circulated and now awaits comments from the social partners before the end of July 2015. The Ministry will be following up on the offer from the ILO to provide training to the police, workers, employers and other stakeholders on the applica-tion of the Code. Furthermore, following consultations between the Government and the ILO, a consultant has been selected to undertake a review of the Public Order Act, and we are working with the ILO to ensure that the consultant starts working in July 2015.
The draft amend-ment to the Suppression of Terrorism Act has been re-ferred back to Cabinet to ensure that the amendments will not compromise law and order. The revised bill will be presented to Parliament shortly. Moreover, following rec-ommendations from the Essential Services Committee, sanitary services have been removed from the list of es-sential services from the Industrial Relations Act, mean-ing that the Government has responded fully to the ILO request (Legal Notice No. 149 of 2014). With respect to the Public Service Bill, this Bill was finalized, presented and received Cabinet’s approval and will be published and presented to Parliament for debate.
Concerning the Correctional Services (Prison) Bill to allow for the right to organize for correctional services staff, as submitted in the Government report in Novem-ber, 2014, the Labour Advisory Board reviewed the draft bill. It has now been reviewed by Cabinet and referred back to the Minister for Justice and Constitutional Affairs for action. This is a substantial piece of legislation as it addresses other issues, beyond the right to organize of correctional services staff. Therefore, other consultative meetings are still ongoing.
Lastly, as previously stated in reports to the ILO, the application for the registration of the Amalgamated Trade Union of Swaziland (ATUSWA) was defective. At the meeting with some of the founding members of ATUSWA, they conceded that their applica-tion was defective, and they have submitted a fresh appli-cation which is being reviewed.
In addition to the legislative amendments, the Govern-ment wishes to address other issues, which have been referred to the Government, through various structures of the ILO. The issues include the following: (a) Thulani Maseko: Mr Maseko was charged and convicted of con-tempt of court after publishing an article which constitut-ed a scurrilous attack on the judiciary, calculated to un-dermine the rule of law in Swaziland. Mr Maseko elected to continue his attack on the judiciary throughout his trial, and this had a bearing on his sentence. The judgment in this case will be made available to the relevant ILO su-pervisory structures. (b) Respect for the law: The Gov-ernment has faced a total disregard for the laws of our country, provocation and violent assaults against police officers and fellow employees by the workers’ federation, its affiliates and their members. This has resulted in con-flict between the police and the federation, its affiliates and their members.
In addition, the Government provided some examples of the acts of violence against the police, as well as other acts of violence and intimidation against fellow employ-ees: (i) On 30 June 2014, two police officers, namely Constable Sihle Zwane and Hlengiwe Shabangu were assaulted with stones and had to be taken to hospital for treatment for injuries they sustained. This was during a strike action by the Swaziland Agricultural Plantations and Allied Workers Union. (ii) On 24 June 2014, during a strike action by the Swaziland Agricultural Plantations and Allied Workers Union, the Deputy National Commis-sioner of Police was held hostage by workers who would not let him out of his motor vehicle, while they also blocked police officers who intended to assist him. (iii) On 20 June 2014, fellow workers, who were exercising their right not to take part in a strike action, were poi-soned (their tea was administered with poison). The em-ployees are still under treatment. These and other allega-tions are set out more fully in our letter to the ILO dated 24 November 2014.
The Industrial Relations Act provides the unions and federations with the right to engage on issues of public policy and public administration. However, the extent to which they may engage in such issues does not cover is-sues which are of a purely political nature (including ad-vocating for regime change through violent means). In-creasingly, the activities of the workers’ federation are being overwhelmed by a political agenda at the expense of its core and primary mandate, which is the advance of socio-economic interests of workers. To some extent, this has been responsible for the tension between the police and the workers’ federation and its affiliates. We request the ILO to pass the message that freedom of association does not translate into lawlessness. It carries with it cer-tain obligations for the maintenance of an orderly society. Tangible progress has been made on the issues referred to the Government by the Committee of Experts.
The Gov-ernment thanks the Office of the ILO for the ongoing ad-vice and assistance received, in particular from the Preto-ria Office and requests its continued support to ensure that all parties exercise their rights with respect for the law. The Government thanks the federations for their coopera-tion (where they did), for making all the work mentioned above a reality and encourages the social partners to strive to ensure the spirit of tripartism,
partnership and coopera-tion, which must forever prevail for the socio-economic development of the country.
The Government also re-quests the trade and development partners of Swaziland to take note of the tangible progress made in addressing the issues raised by the ILO. Based on the positive progress, the year 2015 will be the year when trade relations with key development partners will be improved, thus improv-ing economic development and employment.
In addition, before the Committee, a Government repre-sentative made reference to the written information pro-vided by the Government and she informed the Commit-tee of the measures that had been taken, including with respect to the amendment of the Industrial Relations Act, as well as steps that had been taken towards reviewing the Public Order Act, the Suppression of Terrorism Act, the Public Services Bill and the Correctional Services (Pris-on) Bill, and initiatives taken with a view to adopting a Code of Good Practice on protest and industrial actions. As reflected in the written information, tangible progress had been made on the issues referred to by the Committee of Experts. She requested that the ILO continue to provide support to ensure that all parties were able to exercise their rights within the limits of the law, and encouraged the social partners to act in the spirit of tripartism, part-nership and cooperation.
The Employer members recalled that the case was seri-ous and had been discussed by the Committee 12 times. The Government had previously indicated to the Commit-tee, in June 2013, that it would address all outstanding legislation as a matter of urgency. The Employer mem-bers recalled the conclusions that had been adopted by the Committee in June 2013, as well as the statement of the Employer members during the Committee’s discussion in 2014 that urgent action was required to address the out-standing issues. With respect to the issues raised by the Committee of Experts, the amendments to the Industrial Relations Act had been adopted in November 2014, and subsequently, the registration of federations of workers and employers had taken place in May 2015. The Em-ployer members expressed concern regarding the length of time that the process had taken, and trusted that there would be no further interference with the registration of trade unions or employers’ organizations, in violation of the Convention.
They welcomed the developments that had led to the adoption of the amendments to the Industri-al Relations Act, which now permitted the recognition of workers’ and employers’ organizations under the law, and urged the Government to ensure that the right of associa-tion of all such organizations was ensured in practice.
Such organizations should be given autonomy and inde-pendence to fulfil their mandate and represent their mem-bers. Noting the Committee of Experts’ indication that the lawyer of TUCOSWA, Mr Maseko, was still in prison, the Employer members expressed concern regarding any action to penalize legal counsel for representing their cli-ent’s interests, which constituted a violation of freedom of association. Mr Maseko should be released from deten-tion. The Employer members expressed concern regard-ing the Government’s justification for that imprisonment with explanations on the rule of law and for his alleged written attack on the judiciary through a published article.
The Employer members expressed concern that the Gov-ernment’s explanation with regard to the status of the Public Service Bill and the Correctional Services (Prison) Bill were quite similar to the previous explanations pro-vided. With respect to the review of the Public Order Act, the Employer members encouraged the Government to provide information to the Committee of Experts on pro-gress made in that regard. With respect to the request of the Committee of Experts concerning the right to strike, the Employer members expressed the view that such re-quests fell outside the scope and mandate of that Commit-tee in relation to the Convention, and that the terms and conditions of industrial action, including the issue of sympathy strikes, should be determined at the national level.
The Employer members would continue to monitor adherence to the principle of freedom of association in the country. They were willing to support the Government to promote freedom of association, in both law and practice. They welcomed the registration of TUCOSWA and other federations, but noted with concern the stalling of pro-gress with regard to the outstanding legislative issues. The Employer members expressed concern regarding issues relating to freedom of association in practice.
The Worker members expressed disappointment at the Government’s statement that the repression of the trade unionists was in reaction to acts of violence perpetrated against the police when they had mounted an armed re-sponse to a dispute arising from collective action by the workers. Such an interpretation of a fundamental right, recognized by the social partners, was thoroughly shock-ing. It was the sixth consecutive year that the Committee found itself faced with the Government’s total failure to apply the Convention, after having given it every possible opportunity to undertake the necessary reforms.
Two high-level ILO missions had been sent to the country, the most recent of which, in 2014, had concluded that for the past ten years there had been no progress whatsoever in terms of the protection of the right to freedom of associa-tion. The ILO had also provided the country with tech-nical assistance. Yet the Government still had full discre-tion over the approval of the registration of trade unions, a power it continued to use to restrict freedom of expression and trade union activities, thereby continuing its violation of the right to establish trade unions without prior author-ization.
The Government had thus revoked the registration of TUCOSWA when in March 2012 it had committed itself to backing multipartite democracy, on the grounds that there was a gap in the legislation regarding the regis-tration of union federations. The Ministry of Labour had subsequently announced the suspension of activities of all union federations in October 2014, as well as of ATUSWA, one of the biggest sectoral unions in the coun-try which was affiliated to TUCOSWA. The unions had been ordered to dissolve their various bodies and their financial structure, pending the amendment of the Indus-trial Relations Act. However, the revision of the Industrial Relations Act in 2014 had not reflected the tripartite con-sensus that had been reached in the Labour Advisory Board and did not comply with the Convention, specifi-cally with respect to the right to establish trade unions without prior authorization, as the Act gave the labour commissioner discretionary power in the registration of trade unions. TUCOSWA had been registered by the la-bour commissioner, in accordance with the new legisla-tion, six months after it had officially renewed its request, while ATUSWA had still not been registered 21 months after having presented its request and was not authorized to engage in union activities as it was considered an ille-gal entity by the police.
Workers who engaged in peace-ful, legal and legitimate union activities were constantly exposed to police intimidation and violence. The police systematically attended union assemblies and conducted regular searches of union offices which, if they took place without a warrant, constituted grave and unjustifiable interference in trade union activities.
TUCOSWA had been refused authorization in March 2015 to hold an in-ternal assembly of fewer than 20 people, by virtue of the unjustified application of the Suppression of Terrorism Act, on the grounds that it had to have prior authorization.
Additionally, the police had interrupted two TUCOSWA assemblies in February 2015 and had injured one of its leaders, while the President of the People’s United Demo-cratic Movement (PUDEMO) and the secretary-general of the Swaziland Youth Congress (SWAYOCO) had been arrested and charged under the Suppression of Terrorism Act following a speech at the 1 May 2014 celebrations organized by TUCOSWA. They were now facing 15 years’ imprisonment with hard labour and had twice been refused bail; yet more than a year after their arrest they had still not been sentenced.
The Worker members also drew attention to the 2014 arrest of TUCOSWA’s lawyer, Mr Maseko, and that of a journalist for criticizing the judicial system, to the placing in solitary confinement of the former and to their sentenc-ing to two years’ imprisonment for contempt of court. Those serious and systematic violations perpetrated against workers in the exercise of their rights were legiti-mized by the national legislation such as the Suppression of Terrorism Act, the Public Order Act and the King’s Proclamation of 1973, all of which contravened the Con-vention. For many years, the Committee of Experts had urged the Government to modify its legislation and had recommended the revision of certain laws. Bill No. 18 of 2013, which had been approved by the tripartite Labour Advisory Board, would have given effect to those rec-ommendations, but it had not been submitted to Parlia-ment.
With regard to freedom of association, the situation had greatly deteriorated during the previous year, when numerous trade unionists had been arrested or imprisoned or had suffered physical violence. The Government had failed to bring its law and practice into conformity with the Convention or to engage in a constructive dialogue with the social partners.
The international community had grown weary. The Worker members recalled the resolu-tions condemning the situation which had been adopted by the African Commission on Human and Peoples’ Rights, the trade sanctions imposed by the United States, the European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) calling for the immediate release of the prisoners previously mentioned and full compliance with the Convention, failing which Swaziland risked having its trade preferences withdrawn by Europe. The Worker members made it clear that the workers could wait no longer for resolutions to the problems identified.
The Employer member of Swaziland recalled that the ILO high-level mission that had visited the country in January 2014 had highlighted that the Industrial Relations Act required revision in order to ensure full compliance with the Convention and enable recognition and registra-tion of workers’ and employers’ federations. Those com-mitments had been achieved, which would stabilize indus-trial relations. The previous disagreement with workers concerning civil and criminal liability during strikes and protest action had been resolved. The Government had discussed with the social partners the revision of the Code of Good Practice on protest and industrial actions, and the employers were ready to give their input to ensure that the Code could be both finalized and implemented. The Gov-ernment had stated that the Code would be finalized by July 2015, which, if implemented properly would ensure peaceful strikes and protest actions as well as provide full conformity with the Convention.
ILO technical assistance would once again be requested to address the outstanding legislative issues. The creation and implementation of legislation was the most important milestone. It was also important to create a legal framework which could be understood and, consequently, fully complied with.
The promise to amend the Industrial Relations Act had been kept, and all workers’ and employers’ federations that were in compliance with that Act had been registered. Both civil and criminal liability had been reviewed and included in the Industrial Relations Act. He urged the Government to work on the two remaining pieces of leg-islation, the Public Order Act and the Suppression of Ter-rorism Act, and to seek, if necessary in the process of finalization, ILO technical assistance.
The Worker member of Swaziland stated that his federa-tion, TUCOSWA, had recently been registered following a three-year delay. Despite that, it remained impossible to freely exercise the right of freedom of association and leaders of his organization were continuously harassed by police. TUCOSWA had held, in February 2015, a mass meeting and the participants had experienced police in-timidation. In March 2015, the police had stormed the National Executive Committee meeting and some leaders of TUCOSWA had suffered serious injuries. In April 2015, the police had publicly warned the members of TUCOSWA not to participate in 1 May celebrations. Three days following the registration of TUCOSWA, the police had engaged in monitoring of the federation’s of-fice, and its secretary-general had been questioned.
He expressed regret at the intimidation to which several lead-ers of the Swaziland Transport and Allied Workers Union (STAWU) had been subjected. The police had required that union to provide the minutes of all its meetings, which was a restriction on freedom of association and had to be stopped immediately. Several efforts had been made by the ILO and other institutions in order to ensure the respect of civil rights in the country, but there had been no concrete results. Far-reaching measures were therefore needed in order to elicit concrete action from the Gov-ernment.
The Government member of Latvia, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Albania, Norway, the Republic of Moldova and Armenia, expressed concern at the state of freedom of expression, opinion, assembly and association in the country. She recalled the commitment that had been made by the Government under the Cotonou Agreement – the framework for Swaziland’s cooperation with the EU – to respect democracy, the rule of law and human rights principles, which included freedom of association. The European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) had called on the Government to take concrete measures to respect and promote human rights in the country. In that respect, compliance with the Conven-tion was essential. She welcomed the registration, in May 2015, of TUCOSWA and the other federations, whose recognition had been called for by the Committee.
Those organizations were expected to be given the space and the autonomy they needed. She called on the Government to respect trade union rights at all times. She expressed con-cern at the arrest and sentencing of several human rights defenders, which appeared to be a direct contradiction of the right of freedom of expression and she joined the call of the Committee of Experts for their immediate and un-conditional release. The Committee of Experts had high-lighted several legal acts that were not in conformity with the Convention, and the Government should take the nec-essary measures to bring its legislation into compliance in that regard.
She encouraged the Government to take fur-ther steps to ensure a credible, independent and effective judicial system that could protect the rule of law, workers’ rights and wider human rights in the country. She called on the Government to cooperate with the ILO and to re-spond to the requests of the Committee of Experts. She urged the Government to avail itself of ILO technical as-sistance with a view to addressing the outstanding issues.
The Employer member of Zambia commended the Gov-ernment and the social partners for the successful amendment of the Industrial Relations Act, thus allowing the registration of federations in the country. The registra-tion of employers’ and workers’ organizations was an achievement, as it had previously been requested by the Committee. That demonstrated the commitment of the Government towards achieving full compliance with the Convention, and was a milestone in the creation of peace-ful industrial relations. The elaboration of the Code of Good Practice on protest and industrial actions was close to completion, and the Government should be encouraged to expedite that process. Finally, he urged the Govern-ment to continue to work with the social partners and to refrain from any violations of trade union or workers’ rights. The ILO should monitor the progress achieved and provide any technical assistance required.
The Worker member of Nigeria, also speaking on behalf of Worker members from the member States of the Eco-nomic Community of Western Africa States, indicated that the accomplishments reported by the Government at the Committee remained hollow as the situation in prac-tice suggested. He stated that participation in trade union activities remained a serious crime in Swaziland as exem-plified by the arrest of Mario Masuko and Maxwell Dlam-ini for taking part in 1 May celebrations.
They were de-tained under deplorable conditions in violation of the UN Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and, as a result, Mr Masuko’s health had deteriorated. The speaker stressed the need for the implementation of the rule of law for the guarantee and enjoyment of human and trade union rights. Thulani Maseko and Bheki Makhubu, had been jailed for pointing out the deficiencies of Swaziland’s judicial sys-tem. Recalling that these four persons were in solitary confinement, which in itself constituted torture, he de-nounced the situation in which human rights defenders were unjustly detained for speaking out on issues of jus-tice. He stated that good conscience must resist, so that impunity would not be allowed to thrive.
The Government member of Angola congratulated the Government for the information provided and for its will-ingness to continue collaborating with the ILO. The Gov-ernment had been asked to provide evidence of having complied with the recommendations made by the Com-mittee related to the application of the Convention, which called for several amendments to the labour legislation. The amendment processes had taken time and he congrat-ulated the Government on the progress made in address-ing the recommendations, which showed its willingness and commitment to bridging the gaps that existed in the legislation. He urged the Government to continue with the ongoing process of reform so as to improve the labour legislation with a view to ensuring that it was in line with ILO standards.
The Worker member of South Africa indicated that the number of trade union, civil and political prisoners had grown tremendously over the years, including Thulani Maseko, Bheki Makhubu, Mario Masuko, Maxwell Dlamini, Zonkhe Dlamini, Amos Mbhedzi, Sonkhe Dube, Roland Rudd and Silolo Thandaza. Mario Masuko had been arrested simply for addressing workers and peaceful-ly calling for democracy and still remained in jail. The persecution of trade unionists was disguised as fighting terrorism.
Legislation in Swaziland was one of the most cruel and suppressive legislations that officially criminal-ized the defence of human and trade union rights, and allowed the official persecution of trade union and civil rights activists. Moreover, the non-registration of unions under the pretext that they were engaged in politics sym-bolized the way in which the Government had been deal-ing with the matter.
The speaker mentioned that, having failed to suppress TUCOSWA and unions in general, the Government had formed its own bogus union, called SEEIWU, allegiant only to the monarchy and not to workers. South African trade unionists who had been in-vited by TUCOSWA to visit their sister unions in Swazi-land clearly concluded that there were many similarities between how the Swazi regime and the former apartheid regime in South Africa operated with regard to the perse-cution of workers and human rights activists. The speaker concluded by stating that there could be no free trade un-ion activity without an enabling environment for the dem-ocratic expression of all rights of the people as citizens of the country, including workers.
The Government member of Namibia noted with satis-faction that the Government had made progress with re-spect to the legislative reform, including the registration of federations of employers and workers. She called for the intensification of ILO technical assistance to address the remaining issues and hoped that, given the progress already made, the case would be resolved soon.
The Worker member of the United Kingdom indicated that this case was gaining more condemnation. She re-called that in view of the situation in Swaziland, the Eu-ropean Parliament had recently questioned the advisabil-ity of the Economic Partnership agreement with a group of South African countries, including Swaziland. The European Parliament had also condemned the repression of trade union and human rights through the use of anti-terrorism legislation to intimidate activists, engage in po-litical exclusion, and to restrict the rights to freedom of association and assembly. It had also called for the imme-diate release of prisoners of conscience, Thulani Maseko and Bheki Makhubu, jailed for publicly criticizing the Government. Most importantly, the European Parliament had passed a resolution providing that the institutions of the EU should require Swaziland to comply with its inter-national obligations and to produce real progress, before signing any agreements with Swaziland. In concluding, she emphasized that those breaches of the Convention had been long-standing and that workers in Swaziland could not wait any longer for change.
The Government member of Zimbabwe observed that the Government had taken considerable steps to improve compliance with the Convention, and the results were encouraging. He particularly noted the amendment of the Industrial Relations Act,
the Government’s commitment to review the Public Order Act and to operationalize so-cial dialogue and tripartite consultation, and the elabora-tion of a Code of Good Practice for protest and industrial actions in a tripartite manner. As these were substantial improvements since the last session of the Committee, he called upon the Government and the social partners to build on the progress already realized. He also urged the Office to provide technical assistance with respect to ca-pacity building.
The Worker member of the United States expressed con-cern that the amendments made to the Industrial Relations Act did not bring the law into full compliance with the Convention and that, in practice, laws would continue to be used to suppress trade union rights. Furthermore, she noted that the Government had still not amended its other laws, including the Public Order Act and the Suppression of Terrorism Act. The Government’s lack of a sense of urgency and concern in addressing those long-standing issues was unacceptable. She was concerned that, in May 2015, Swaziland had lost the benefit under the African Growth and Opportunity Act (AGOA), giving preferential market access to the United States under the condition that internationally recognized workers’ rights, including the right of association and the right to organize and bar-gain collectively, would be protected.
That revocation would be felt most deeply by the workers in the country. It was estimated that 17,000 jobs would be lost as a con-sequence. The points considered when the AGOA bene-fits had been revoked (known as the “benchmarks”) were very similar to the considerations by the Committee of Experts. For example, both had asked the Government to amend the Public Order Act in order to allow the full recognition of freedom of assembly, speech and organiza-tion. She explained that AGOA eligibility could be re-stored if the Government would meet the benchmarks. Swazi trade unionists were attempting to mobilize the Government to address those outstanding issues with re-spect to the benchmarks. In that context, two activists had participated in the Africa Leaders’ Summit held in Wash-ington D.C. in August 2014. The Prime Minister had stat-ed that these activists should be “strangled” upon their return to the country. She considered that when the Gov-ernment openly spoke about killing trade unionists, there remained much work to be done.
The Government member of Botswana noted with satis-faction that tremendous progress had been made by the Government since last year to improve the industrial rela-tions climate in the country. Since the implementation of those reforms might come with challenges, he called upon all parties concerned to genuinely work together to im-prove the lives of Swazi workers. He expressed support to the Government in that respect.
The Worker member of Argentina expressed his concern at the serious violations of freedom of association in Swa-ziland. The Articles of the Convention should be given effect simultaneously. The registration of TUCOSWA, following a three-year wait, was the result of pressure exerted by workers and complaints before the ILO super-visory bodies. The trade union organizations nevertheless faced many obstacles to the implementation of their pro-grammes. Their meetings and mobilizations were fre-quently prevented by the security forces, in a context of violations of fundamental human rights. It was not suffi-cient to allow organizations to register if afterwards they could not carry out their programmes, if the law qualified nearly all their activities as terrorist activities or con-travening public order, if workers were faced with the threat of being arrested for participating in trade union activities, or when the organizations had to give prior notice to the security forces for almost all their activities. For the workers of Argentina and Latin America, the situ-ation evoked the saddest years of their history, during which the Committee had been a space of solidarity. That same solidarity should today be directed towards workers, trade unions and human rights defenders in Swaziland, so that democracy and human rights, including freedom of association, might become a reality throughout the world.
The Government member of the United States referred to the positive amendments introduced in 2014 to the Indus-trial Relations Act as regards the registration of employ-ers’ and workers’ federations and the repeal of the civil and criminal liability of trade union leaders. She wel-comed the registration in 2015 of TUCOSWA and the participation of its president in the International Labour Conference. Despite these encouraging developments, several concerns remained towards full compliance with the Convention, such as: the need to amend the Public Order Act and the Suppression of Terrorism Act for which the Government was encouraged to take full ad-vantage of ILO technical assistance; the need to enact the Code of Good Practice and disseminate it to police forces; and to effectively guarantee the right to freedom of asso-ciation in practice.
The Government must end both the practice and threat of police intimidation and interference with trade union activities as a means of suppressing the full enjoyment of the right to freedom of association and the right to collective bargaining. The arbitrary detention of trade unionists, such as that of Mr Thulani Maseko since 2013 for exercising the fundamental right to free-dom of speech, must end and the Government needed to ensure their immediate and unconditional release. In 2015, in view of the above, the United States had with-drawn Swaziland’s eligibility for trade preferences under AGOA and continued to monitor progress towards the realization of the protection and enjoyment of the right to freedom of association in conformity with the Conven-tion. She urged the Government to accept all necessary ILO technical assistance to accomplish the requisite legis-lative reforms recommended by the Committee of Experts and to create an environment conducive to open social dialogue and full cooperation with the social partners.
The Worker member of Norway, speaking also on behalf of Worker members of the Nordic countries, deplored that, despite repeated promises from the Government to improve the situation, this Committee was once again discussing the case of Swaziland. The delaying in the registration of TUCOSWA, as well as the employers’ organizations, had disrupted the normal trade union func-tions and had affected the status of social dialogue. After three years, the TUCOSWA had finally re-registered in May 2015, but the Ministry of Labour and Social Security had still been incapable of guaranteeing unions the free-dom to operate without interference. Indeed, the authori-ties had continued to intimidate and disturb trade union activities by demanding to see the meeting agenda and by being present during meetings. Activists and TUCOSWA sympathizers were still being subjected to arrests and thus were being deprived of their most fundamental human rights. She urged the Government to avoid cosmetic re-forms and to enter into genuine dialogue with the social partners, so that the case would not appear on the agenda of the Committee again.
The Government member of Zambia was pleased to note the progress made by the Government with respect to the case, including, among others, the amendments to the Industrial Relations Act and the finalization of the Code of Good Practice on protest and industrial actions, as well as the review of other pieces of legislation. In taking these measures, the Government had reached out to the social partners to find amicable solutions. He urged the Gov-ernment to continue that effort,upholding tripartism. He also urged the Government to implement the new measures adopted in the past year with a view to address-ing the emerging issues. He appealed all the stakeholders in the country to ensure the promotion of social dialogue so that solutions to outstanding problems would be found and implemented. He also appealed to the Office to con-tinue providing technical assistance to Swaziland with respect to the matters raised in the case.
The Employer member of Malawi, speaking also on be-half of the South African Development Community Pri-vate Sector Forum, expressed the view that the Govern-ment and the social partners had begun to address the issues raised in the case, although the results might not be immediate. The labour legislation had been amended and further review was expected with respect to the Industrial Relations Act. He hoped that the ILO would encourage tripartite cooperation at the national level in implementing national policies. Such an environment was conducive to economic growth. He therefore encouraged the Govern-ment to continue to engage with the social partners. He also commended the employers in Swaziland for their commitment to the process. An observer representing the International Trade Union Confederation (ITUC) had been running a small business, but now had a new role to advocate for the release of her husband, Mr Thulani Maseko, who had been sentenced to a two-year prison term since March 2014 for having criti-cized the injustice a worker had faced through the judici-ary.
The court had indicated specifically that his case would be treated differently. She recalled that in 2009, Mr Maseko had been charged with sedition for his May Day speech, a charge that could have led to a 15 to 20-year sentence. She was of the view that the Government was clearly using him in order to intimidate citizens and pre-vent them from raising their voices against abuse. Despite imprisonment, Mr Maseko remained strong and had writ-ten a letter on the first anniversary of his imprisonment, which had resulted in solitary confinement for three weeks. While access to him in prison had been denied, she had been able to see him briefly and had assured him of the support from his colleagues in the trade union movement and in civil society. She hoped that she would be able to carry him the same message from the Commit-tee.
The Government member of Cuba took note of the fact that, as a result of tripartite consensus and with immediate effect, the Industrial Relations Act had been amended and had changed the procedure for registering workers’ and employers’ organizations and the criminal and civil liabil-ity of trade unions. The Government was prepared to deal with registration requests in a manner that gave full effect to the right to freedom of association. The Committee of Experts had taken note with satisfaction of the deletion of sanitary services from the list of essential services and the Government had provided information on other legislative amendments made in line with the Committee’s com-ments. The above demonstrated the Government’s politi-cal will to comply with the Convention, and to respect the principles of freedom of association, which the Commit-tee should take into account.
The Government member of Morocco thanked the Gov-ernment for the information that it had provided, which had answered, in part, the Committee of Experts’ com-ments concerning the registration of workers’ and em-ployers’ federations and legislative matters. He noted with interest the clarifications provided on freedom of associa-tion and collective bargaining, the Public Service Bill, the amendments to the Industrial Relations Act and the entry into force of the Constitution which superseded the 1973 Proclamation and its implementing regulations. Underlin-ing the Government’s strong will to align the country’s legislation and practices with the Convention and support-ing the efforts being made, he suggested that the Govern-ment be provided with the technical assistance required to revise the Public Order Act. The Government should be given sufficient time to further reforms, particularly those involving the Correctional Services (Prison) Bill and the Code of Good Practice for protest and industrial actions.
The Government representative noted and welcomed all the interventions in the Committee. She explained that the Government was committed to implementing the recom-mendations put forward by the Committee of Experts in its observation, and hoped that the adoption of the Code of Good Practice, the amendment of the Public Order Act and the resuscitation of social dialogue would assist in maintaining a healthy relationship with the social part-ners. The Government representative requested the Com-mittee to recognize the tangible progress made, and to encourage the social partners to work with the Govern-ment.
She also asked for the ILO’s technical assistance for the implementation of the measures mentioned, as well as workshops concerning the rights provided for in the Convention. The Government representative was aware of the concerns regarding the independence of the judiciary, and stated that these concerns would be ad-dressed as a matter of urgency. Thanking the ILO for its help, she was hopeful that the positive approach taken by the Government and the social partners would help dif-fuse the conflict and facilitate future dialogue.
The Employer members were pleased with the Govern-ment’s constructive and positive attitude regarding the various interventions and recommendations made. They wished to recognize the following developments as im-provements: the amendment of the Industrial Relations Act which allowed the registration of employers’ and workers’ organizations, which had led to the registration of TUCOSWA and employers’ organizations in May 2015; the circulation of the draft Code of Good Practice, elaborated with the active participation of the social part-ners; and the consultations held with the ILO in respect of the Public Order Act, for which a consultant had been selected for its review. The Employer members encour-aged the Government to continue those necessary legisla-tive reforms, in consultation with the social partners as well as with the collaboration of the ILO, so as to gener-ate a climate in which freedom of association of employ-ers and workers would be respected in law and practice.
The Employer members raised concern with respect to the Public Service Bill, the Public Order Act and the Correc-tional Services (Prison) Bill and requested the Govern-ment to ensure that criminal and civil liability arising from these instruments would not impact freedom of as-sociation. The Employer members were also pleased by the Government’s request for ILO technical assistance and requested that this assistance focus on the outstanding issues. They highlighted that it was important to imple-ment necessary reforms both in law and practice, thereby supporting economic growth, creating an environment for sustainable enterprises to thrive, and creating jobs. The Employer members urged the Government to complete the work that it had begun without further delay.
The Worker members stated that they would have liked to be positive but it proved to be difficult. It was now time for urgent action. They took note of the progress indicated by the Government;
yet they were of the view that if one was to examine closely the situation, it was hardly possi-ble to see any progress. With regard to the Industrial Re-lations Act,
they noted that section 32 continued to give unlimited discretionary powers to the Labour Commis-sioner in respect of the registration of trade unions. The registration of TUCOSWA, which had taken more than three years, should not be considered as a governmental success. Moreover, ATUSWA, one of the largest sectoral unions in the country, had formally lodged its application more than 21 months previously and was still awaiting registration. They stated that it remained to be seen whether or not the amendments to the Industrial Relations Act would mean that trade union leaders would cease to be subjected to criminal and civil liability in practice.
They recalled that the discussions on the Code of Good Practice for protest and industrial actions had finalized in July 2014, yet the Government had waited until 19 May 2015 to forward the document to workers for their com-ments. Regarding the technical assistance sought by the Government in order to amend the Public Order Act and bring it into line with the Convention, that technical assis-tance had been provided in 2011 by the ILO on that very issue. As a result, clear and specific recommendations had been given as to the manner in which the Act needed to be amended; but the Government had chosen to ignore these recommendations for over four years. The Government considered that the revision of the Correctional Services (Prison) Bill was a sign of progress, but they recalled that, for more than two decades, the Committee of Experts had been urging the Government to adopt that legislation. To date, prison staff were still not allowed to join or establish a trade union. Swaziland had not fully addressed any of the recommendations provided by the supervisory bodies over several decades. Technical assistance, fact-finding and high-level missions by the ILO had not been seized as an opportunity to bring laws and practices into compli-ance with the Convention.
Instead, the police had contin-ued to attack and arrest trade unionists. The Worker members therefore called upon the Government to: im-mediately and unconditionally release all workers impris-oned for exercising their right to freedom of expression; register ATUSWA and amend section 32 of the Industrial Relations Act in order to ensure that trade unions could be registered without previous authorization; amend the Pub-lic Order Act and the Suppression of Terrorism Act in order to bring it into compliance with the Convention;adopt the Code of Good Practice without any further de-lay and ensure its effective application in practice; adopt the Correctional Services (Prison) Bill to allow prison staff to join and establish trade unions; and investigate arbitrary interferences by police in lawful, peaceful and legitimate trade union activities.
Conclusions
The Committee took note of the written and oral infor-mation provided by the Government and the discussion that followed.
The Committee noted that the report of the Committee of Experts referred to grave and persisting issues of non-compliance with the Convention in particular in relation to the de-registration of all federations in the country: the Trade Union Congress of Swaziland (TUCOSWA), the Fed-eration of Swaziland Employers and Chambers of Com-merce (FSE–CC) and the Federation of Swaziland Business Community (FSBC). The Committee of Experts called on the Government to register these organizations without de-lay and to ensure their right to engage in protest action and peaceful demonstrations in defence of their members’ occu-pational interests and to prevent any interference or reprisal against their leaders and members. The Committee of Ex-perts’ comments also referred to the ongoing imprisonment of TUCOSWA’s lawyer, Mr Maseko, and a number of laws that needed to be brought into conformity with the provi-sions of the Convention.
The Committee took note of the information provided by the Government representative relating to the amendment made to the Industrial Relations Act (IRA) by virtue of which TUCOSWA, the FSE–CC and the FSBC are now registered. She indicated the Government’s full commitment to ensuring the full operationalization of all tripartite struc-tures and stated that the federations have been invited to nominate their members on the various statutory bodies. She emphasized that this development would assist in maintain-ing a healthy social dialogue in Swaziland. Sections 40(13) and 97 of the IRA had also been amended to respond to the comments of the Committee of Experts.
A revised Code of Good Practice on protest and industrial actions had been circulated and the Government was awaiting comments from the social partners, while the revised bill to amend the Suppression of Terrorism Act was referred back to Cabinet to ensure that the amendments would not compromise law and order. Similarly, the Correctional Services (Prison) Bill had been referred back to the Minister for Justice and Con-stitutional Affairs. As for Mr Maseko, she recalled that he was charged and convicted for contempt of court after pub-lishing an article which constituted a scurrilous attack on the judiciary and was calculated to undermine the rule of law in Swaziland. The issue of the independence of the judiciary was being addressed as a matter of urgency. She concluded by reiterating her Government’s request for ILO technical assistance to ensure the completion of the Code of Good Practice and amendments to the Public Order Act, and indi-cated her desire for training for all parties in this regard.Taking into account the discussion, the Government is urged, without further delay, to:
■ release unconditionally Thulani Maseko and all other workers imprisoned for having exercised their right to free speech and expression;
■ ensure all workers’ and employers’ organizations in the country are fully assured their freedom of association rights in relation to the registration issue, in particular, register the Amalgamated Trade Union of Swaziland (ATUSWA) without any further delay;
■ amend section 32 of the IRA to eliminate the discretion of the Commissioner of Labour to register trade un-ions;
■ ensure organizations are given the autonomy and inde-pendence they need to fulfil their mandate and repre-sent their constituents. The Government should refrain from all acts of interference in the activities of trade unions;
■ investigate arbitrary interference by police in lawful, peaceful and legitimate trade union activities and hold accountable those responsible;
■ amend the 1963 Public Order Act following the work of the consultant, and the Suppression of Terrorism Act, in consultation with the social partners, to bring them into compliance with the Convention;
■ adopt the Code of Good Practice without any further delay and ensure its effective application in practice;
■ address the outstanding issues in relation to the Public Services Bill and the Correctional Services Bill in con-sultation with the social partners; and
■ accept technical assistance in order to complete the legislative reform outlined above so that Swaziland is in full compliance with the Convention.
The Committee decided to include its conclusions in a spe-cial paragraph of the report.
The Government representative thanked the Committee for its conclusions. Highlighting that the Government had made significant progress in respect to its legislation, she expressed surprise at the conclusions, in particular the last part. She reiterated the Government’s commitment to address the issues raised by the Committee and to report periodically.
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