Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

The Committee takes note of the Government’s report, as well as observations made by the Swaziland Federation of Trade Unions (SFTU) and the International Confederation of Free Trade Unions (ICFTU), on which the Committee requests the Government to comment.

Article 2 of the Convention. The Committee notes the Government’s statement that it is considering the question of including prison staff within the scope of the application of the Industrial Relations Act (IRA) and recalls that under Article 2 of the Convention, workers and employers, without distinction whatsoever, have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee once again requests the Government to amend its legislation or enact separate legislation to ensure that prison staff are granted the right to organize in defence of their economic and social interests and to keep it informed in this regard.

Article 3. The Committee notes the Government’s comment that it is considering the question of reducing the length of the compulsory dispute settlement procedure required before strike action could be taken legally. The Committee repeats its earlier request to the Government to amend its legislation in order to decrease the length of the compulsory disputes procedure provided for in sections 85 and 86, read with sections 70-82, of the IRA and asks to be kept informed of progress in that regard.

The Committee further notes the Government’s indication that the issue of charges under section 40(13) of the IRA has not arisen and requests the Government to continue to keep it informed of any practical application of section 40 and, in particular, any charges brought by virtue of section 40(13). The Committee further notes that the Government has not provided any information in its report on the Internal Security Bill and once again asks it to indicate whether the Bill has been adopted and, if so, to transmit a copy of the adopted text.

In its previous comments, the Committee had expressed concern that the 1963 Public Order Act and the Decree of 1973, which suppressed trade union rights and, in particular, section 12, appeared still to be in force and invoked by the Government. The Committee stated its hope that the process to draft the national Constitution in conformity with international standards would ensure that trade union rights would be respected and that the Decree would finally be repealed. The Committee asked the Government to keep it informed in its next report on all progress made in this regard.

While the Committee notes that the Government has not provided any information on the drafting of the new Constitution, it observes that the SFTU has raised serious concerns in its comments about both the drafting process and the content of the Constitution, which has apparently been approved by Parliament. The Committee requests the Government to provide detailed information in its next report on the matters raised by the SFTU and urges it to take all necessary measures to ensure that the Constitution does not contravene the provisions of the Convention and so that its adoption will result in the effective repeal of the 1973 Decree. The Committee further requests the Government to furnish a copy of the draft Constitution with its next report.

Finally, the Committee notes the comments of the ICFTU indicating that a three-day protest by Swazi labour federations in August 2003 was violently broken up by police using tear gas and rubber bullets, during which one trade unionist was killed. The Committee recalls that freedom of assembly constitutes a fundamental aspect of trade union rights and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see General Survey on freedom of association and collective bargaining, 1994, paragraph 35). Further, the Committee has stressed that, when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities (see General Survey, op. cit., paragraph 29). The Committee requests the Government to indicate, in its next report, the outcome of inquiries held in respect of the trade unionist killed during the protest.

The Committee is raising other points in a request addressed directly to the Government.