Interim Report - Report No 362, November 2011

Case No 2715 (Democratic Republic of the Congo) - Complaint date: 06-APR-09 - Follow-up

Allegations: The complainant alleges anti-union discrimination against the President of the national trade union delegation of the Customs and Excise Office (OFIDA), and especially his dismissal

1. 1426. The Committee last examined this case at its meeting in November 2010, when it presented an interim report to the Governing Body [see 358th Report, approved by the Governing Body at its 309th Session (2010), paras 893–910].
2. 1427. At its meeting in June 2011 [see 360th Report, para. 5], the Committee made an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 1428. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 1429. In its previous examination of the case in November 2010, the Committee made the following recommendations [see 358th Report, para. 910]:
   • (a) The Committee regrets that the Government has not responded to the complainant’s allegations even though it has been invited on several occasions to send its comments and observations on the case and has received an urgent appeal to do so. Noting furthermore that this is the fourth consecutive case on which the Government has failed to provide any information in response to the allegations presented, the Committee urges the Government to be more cooperative in the future.
   • (b) Recalling that the responsibility for applying the principles of freedom of association rests ultimately with the Government, the Committee urges it without delay to take all the steps at its disposal to follow up the General Labour Inspectorate’s decision to reinstate all the members of the OFIDA (now DGDA) union delegation, and to ensure that Mr Lubamba Kabeya is reinstated in his post and is paid the wages that are in arrears and all benefits due to him.
   • (c) The Committee requests that the Government take all the necessary measures to implement the decision of the General Labour Inspector requesting to cancel the trade unions’ elections held in the OFIDA in April 2005 and in the DGDA in March 2009, and ensure that any elections held in the DGDA in the future comply with the principles of non-interference referred to above.

B. New allegations from the complainant organization

1. 1430. In communications dated 12 July, 19 October, 15 November, and 9 December 2010, and 14, 24 and 31 January, 30 March, 24 May et 25 June 2011, the Congolese Labour Confederation (CCT) referred to the various steps taken before the different authorities in the country, including the President of the Republic, to ensure the implementation of the decisions of the General Labour Inspectorate to reinstate all members of the trade union delegation of the Customs and Excise Office (DGDA) – formerly OFIDA – and in particular to reinstate Mr Lubamba Kabeya to his position six years after his dismissal, as well as to invalidate the results of the trade union elections held in 2005 and 2009. The CCT once again denounces, the stalling administration of justice, as well as the impunity that appears to be enjoyed by the main culprit in the case, Mr Rugziwa Magera, Director-General of the DGDA, who is refusing to implement the decisions of the General Labour Inspectorate when even the Ministry of Justice has been requesting, since November 2010, the cooperation of the Prosecutor General of the Republic in the implementation of the Labour Inspectorate’s decisions. The CCT also states that Mr Kabeya’s situation has led him to undertake a hunger strike in protest against the status quo.

C. The Committee’s conclusions

1. 1431. The Committee deeply deplores that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through two urgent appeals, to present its comments and observations on the allegations and its response to the recommendations made by the Committee in its previous examination of the case [see 357th Report and 360th Report, para. 5].
2. 1432. Hence, in accordance with the applicable procedure rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present another substantive report on the case without being able to take into account the information it had expected to receive from the Government.
3. 1433. The Committee once again reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31].
4. 1434. The Committee notes with deep regret that the Government has still not provided any information whatsoever regarding the five consecutive complaints submitted since 2009, which have already been examined in the absence of a Government’s response, and which allege grave violations of freedom of association. The Committee notes with regret that the Government continues to fail to comply, despite assurances given to the Chairperson of the Committee at a meeting held in June 2011, and expects the Government to be more cooperative concerning this case and invites it to avail itself of the technical assistance of the Office.
5. 1435. The Committee notes the steps taken by the CCT before the various different authorities in the country, including the President of the Republic, to ensure the implementation of the decisions of the General Labour Inspectorate to reinstate all members of the trade union delegation of the DGDA and, in particular, to reinstate Mr Lubamba Kabeya to his position six years after his dismissal, as well as to invalidate the trade union elections held in 2005 and 2009. The Committee also observes that the CCT once again denounces not only the stalling administration of justice, but also the impunity that appears to be enjoyed by the main culprit in the case, Mr Rugziwa Magera, Director-General of the DGDA, who is refusing to implement the decisions of the General Labour Inspectorate. The Committee further notes with concern the information that the status quo in this case has led Mr Lubamba Kabeya to undertake a hunger strike.
6. 1436. In view of the fact that the situation remains unchanged despite the length of time that has elapsed since the complaint was filed, the Committee considers itself obliged to reiterate its previous recommendations, and fully expects the Government to provide information without delay.

The Committee's recommendations

1. 1437. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply deplores that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through two urgent appeals, to present its comments and observations on the allegations and its response to the recommendations made by the Committee in its previous examination of the case. The Committee notes with regret that the Government continues to fail to comply, despite assurances given to the President of the Committee at a meeting held in June 2011, and expects the Government to be more cooperative concerning this case and invites it to avail itself of the technical assistance of the Office.
   • (b) Recalling that the responsibility for applying the principles of freedom of association rest ultimately with the Government, the Committee urges the Government to take all the steps at its disposal, without delay, to follow up the decision of the General Labour Inspectorate to reinstate all members of the trade union delegation of OFIDA (now the DGDA), and to ensure Mr Lubamba Kabeya is reinstated in his post and is paid the wages that are in arrears and all benefits due to him.
   • (c) The Committee requests that the Government provide its comments on the allegations of DGDA interference in the trade union elections held in 2009, and to ensure that all future DGDA electoral processes comply with the principles of non-interference referred to above.