Interim Report - Report No 403, June 2023

Case No 3067 (Democratic Republic of the Congo) - Complaint date: 15-APR-14 - Follow-up

Allegations: The complainant organizations allege Government interference in trade union elections in the public administration, intimidation, and the suspension and detention of union officials at the instigation of the Ministry of Public Service

1. 429. The Committee last examined this case, which was brought by several public administration trade unions, at its meeting in June 2022 and, on that occasion, presented another interim report to the Governing Body [see 399th Report, approved by the Governing Body at its 345th Session (June 2022), paras 261–269].
2. 430. The Committee has been obliged to postpone its examination of this case twice, in the absence of a reply from the Government. At its meeting in March 2023 [see 401st Report, para. 6], the Committee expressed regret at the continued lack of cooperation and launched another urgent appeal to the Government, indicating that it would present a report on the substance of the matter at its next meeting even if the information or observations requested had not been received in due time. To date, the Government has not sent the requested information.
3. 431. 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), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 432. When it last examined the case, in June 2022, the Committee made the following recommendations [see 399th Report, para 269]:
   • The Committee deplores that, despite the time that has elapsed since the presentation of the complaint, which concerns events that date back a decade, the Government has still not provided a response to the Committee’s recommendations. The Committee urges the Government to demonstrate greater cooperation in the future. The Committee further urges the complainant organizations to provide all relevant information concerning the status of the numerous issues raised in this case.
   • The Committee trusts that the Government will take the necessary steps without delay to review the contested 2013 decrees of the Ministry of Public Service in consultation with the relevant workers’ organizations.
   • The Committee once again strongly urges the Government to undertake, without delay, consultations with all the representative workers’ organizations concerned, including the national inter-union body for the public sector (INSP) and the Independent Trade Unions of the Public Administration (SIAP), on ways of representing workers’ interests in collective bargaining in the public administration. The Committee requests the Government to keep it informed in this regard.
   • The Committee urges the Government to provide the founding document of the national public administration inter-union association (INAP) and the handover document between the former inter-union association (INSP) and the INAP and to report its observations on the matter.
   • The Committee trusts that the Government will issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee once again urges the Government to conduct investigations on the mentioned disciplinary action cases against trade union leaders in order to determine if they were punished for lawfully exercising their trade union activities and, if appropriate, to award compensation that sufficiently discourages further disciplinary action.
   • Noting that Mr Muhimanyi and Mr Endole Yalele filed complaints before the appeals court for the violation of the legal time limit for concluding a disciplinary case, the Committee urges the Government to keep it informed of the result of these complaints.
   • The Committee once again urges the Government to conduct without delay an investigation into the circumstances behind the arrest and detention of trade union leaders in July 2013 and November 2014 and to keep it informed of the findings and follow-up action.
   • The Committee urges the Government to inform it of the follow-up given to the administrative and judicial appeals brought by the complainants.
   • Firmly recalling that trade union leaders should not be subject to retaliatory measures, and in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, including for having lodged a complaint with the Committee on Freedom of Association, and underlining the importance of ensuring that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of pressure, fear and threats of any kind, the Committee once again urges the Government to provide detailed information without delay on the reasons for and the status of the dismissals and disciplinary action against the following trade union leaders and members: Mr Nkungi Masewu, President of SYAPE; Mr Embusa Endole, President of ESPOIR; Mr Gongwaka, trade union leader; Mr Kaleba, President of the CCT/Finance union committee; and Mr Kalambay, coordinator of COSSA. Noting with concern that fresh allegations have been made of harassment of trade union leaders, the Committee urges the Government to provide information on the situation of Mr Mulanga Ntumba, General Secretary of SAFE, and Mr Tshimanga Musungay, General Secretary of Trade Union Renewal of the Congo (RESYCO).
   • The Committee once again urges the Government to provide without delay detailed information in response to the allegations that trade union leaders in the public service have been subjected to disciplinary measures, including dismissal, and particularly on the reasons given to justify the termination in May 2016 of the President of the Union of State Officials and Civil Servants (SYAPE), Mr Nkungi Masewu.
   • Given the difficulty in obtaining the requested information from both the Government and the complainant organizations, the Committee invites the Government to accept an advisory mission to facilitate understanding and resolution of the outstanding issues.

B. The Committee’s conclusion

1. 433. The Committee deplores once again that, despite the time that has elapsed since the presentation of the complaint, which concerns events that date back more than ten years, the Government has still not provided a response to the Committee’s recommendations, even though it has been requested several times to do so, including through another urgent appeal.
2. 434. Under these circumstances and in accordance with the applicable procedural rule [see 127th Report, approved by the Governing Body at its 184th Session (1972), para. 17], the Committee is obliged to present a new report on the substance of the case without being able to take account of the information that it hoped to receive from the Government.
3. 435. The Committee 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 of employers and workers is to promote and ensure respect for this freedom in law and in fact [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 3.] 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 allegations brought against them [see First Report of the Committee, 1952, para. 31]. The Committee once again urges the Government to be more cooperative in the future, especially since it has availed itself of ILO technical assistance on several occasions and engaged in a standards-orientated development cooperation programme.
4. 436. Recalling that this case, presented by several public administration trade unions, concerns the alleged interference, with impunity, of the Government, as the employer, in trade union activities, particularly intimidation of, and disciplinary measures against, trade union officials, and the adoption of contentious regulations concerning the organization of trade union elections in the public administration aimed at the establishment of an inter-union association (INAP) under the control of the Government as its sole representative, the Committee is obliged to refer once again to the conclusions and recommendations it made during the examination of this case at its meeting in June 2022 [see 399th Report, paras 261–269]. The Committee once again further urges the complainant organizations to provide all relevant information concerning the status of the numerous issues raised in this case. Lastly, given the difficulty in obtaining the requested information from both the Government and the complainant organizations, the Committee recalls its invitation to the Government to accept an advisory mission to facilitate understanding and resolution of the outstanding issues.

The Committee’s recommendations

1. 437. 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, which concerns events that date back more than ten years, the Government has still not provided a response to the Committee’s recommendations. The Committee once again urges the Government to demonstrate greater cooperation in the future. The Committee once again further urges the complainant organizations to provide all relevant information concerning the status of the numerous issues raised in this case.
   • (b) The Committee firmly urges the Government to take the necessary steps without delay to review the contested 2013 decrees of the Ministry of Public Service in consultation with the relevant workers’ organizations.
   • (c) The Committee can only once again firmly urge the Government to undertake, without delay, consultations with all the representative workers’ organizations concerned, including the national inter-union body for the public sector (INSP) and the Independent Trade Unions of the Public Administration (SIAP), on ways of representing workers’ interests in collective bargaining in the public administration. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee firmly urges the Government to provide the founding document of the national public administration inter-union association (INAP) and the handover document between the former inter-union association (INSP) and the INAP and to report its observations on the matter.
   • (e) The Committee firmly expects that the Government will issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee once again urges the Government to conduct investigations on the mentioned disciplinary action cases against trade union leaders in order to determine if they were punished for lawfully exercising their trade union activities and, if appropriate, to award compensation that sufficiently discourages further disciplinary action.
   • (f) Noting that Mr Muhimanyi and Mr Endole Yalele filed complaints before the appeals court for the violation of the legal time limit for concluding a disciplinary case, the Committee once again urges the Government to keep it informed of the result of these complaints.
   • (g) The Committee firmly urges the Government to conduct without delay an investigation into the circumstances behind the arrest and detention of trade union leaders in July 2013 and November 2014 and to keep it informed of the findings and follow-up action.
   • (h) The Committee once again urges the Government to inform it of the follow-up given to the administrative and judicial appeals brought by the complainants.
   • (i) Firmly recalling that trade union leaders should not be subject to retaliatory measures, and in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, including for having lodged a complaint with the Committee on Freedom of Association, and underlining the importance of ensuring that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of pressure, fear and threats of any kind, the Committee firmly expects the Government to provide detailed information without delay on the reasons for and the status of the dismissals and disciplinary action against the following trade union leaders and members: Mr Nkungi Masewu, President of SYAPE; Mr Embusa Endole, President of ESPOIR; Mr Gongwaka, trade union leader; Mr Kaleba, President of the CCT/Finance union committee; and Mr Kalambay, coordinator of COSSA. Noting with concern that fresh allegations have been made of harassment of trade union leaders, the Committee urges the Government to provide information on the situation of Mr Mulanga Ntumba, General Secretary of SAFE, and Mr Tshimanga Musungay, General Secretary of Trade Union Renewal of the Congo (RESYCO).
   • (j) The Committee firmly expects the Government to provide without delay detailed information in response to the allegations that trade union leaders in the public service have been subjected to disciplinary measures, including dismissal, and particularly on the reasons given to justify the termination in May 2016 of the President of the Union of State Officials and Civil Servants (SYAPE), Mr Nkungi Masewu.
   • (k) Given the difficulty in obtaining the requested information from both the Government and the complainant organizations, the Committee recalls its invitation to the Government to accept an advisory mission to facilitate understanding and resolution of the outstanding issues.