4. A complaint was addressed direct to the ILO by the Lesotho General Workers' Union in a communication dated 12 October 1970. The complainants, having been informed by a letter from the Director-General, dated 3 November 1970, that they were entitled to supply further information in support of their complaint, furnished such information by a communication dated 23 March 1971. The complaint and the information supplied in support thereof were transmitted to the Government of Lesotho for observations by two letters from the Director-General dated 3 November 1970 and 20 April 1971, respectively. No reply has been received from the Government.
- 4. A complaint was addressed direct to the ILO by the Lesotho General Workers' Union in a communication dated 12 October 1970. The complainants, having been informed by a letter from the Director-General, dated 3 November 1970, that they were entitled to supply further information in support of their complaint, furnished such information by a communication dated 23 March 1971. The complaint and the information supplied in support thereof were transmitted to the Government of Lesotho for observations by two letters from the Director-General dated 3 November 1970 and 20 April 1971, respectively. No reply has been received from the Government.
- 5. On 15 July 1971, the period of notice given by Lesotho on 15 July 1969 of its intention to withdraw from the International Labour Organisation expired. Lesotho remained a Member of the United Nations.
- 6. At the time of its admission to membership of the ILO, on 31 October 1966, Lesotho confirmed its acceptance of the obligations deriving from 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), which the United Kingdom had formerly declared applicable to Basutoland. Under the terms of article 1, paragraph 5, of the Constitution of the ILO, "when a Member has ratified any International Labour Convention", its withdrawal from the Organisation "shall not affect the continued validity for the period provided for in the Convention of all obligations arising thereunder or relating thereto."
A. A. The complainants' allegations
A. A. The complainants' allegations
- Analysis of the Complaint
- 7 The complainants have alleged that the declaration of a state of emergency on 30 January 1970 and the suspension of the country's Constitution, one of the effects of which was that the courts could not sit during the period of suspension, were seized by the Government as a pretext and an opportunity for a policy of anti-union discrimination against which the workers were unable to defend themselves.
- 8 " During the state of emergency " declare the complainants " workers are denied freedom of assembly, that is, they are not allowed to hold any meeting to discuss workers' problems, nor to meet for Committee transactions. Workers are employed according to their political tendencies. If the workers are politically anti-, not pro-government in their service, the state of emergency is applied to them by the authorities so as to get them out of their jobs indirectly."
- 9 The anti-union acts of the Government appear to have taken the form of measures of persecution consisting mainly in arrests or dismissals. The complainants make specific allegations in this respect and give the following account of the events which have taken place.
- 10 The officials of the Basutoland Federation of Labour (BFL) negotiated in writing with different government departments which had dismissed members of the autonomous trade unions affiliated to the BFL-the Lesotho General Workers' Union, the Lesotho Transport and Telecommunication Workers' Union, the Lesotho Industrial, Commercial and Allied Workers' Union and the Lesotho Typographical Workers' Union.
- 11 According to the complainants, some government departments, such as the Health Department, did not negotiate with the BFL trade unions; instead of recourse being had to the negotiation machinery, officials of the BFL are said to have been persecuted and imprisoned.
- 12 When the trade union officials insisted on the use of the negotiation machinery, government officials such as the Permanent Secretary to the Ministry of Public Works refused to negotiate with them, stating that their request was premature owing to the state of emergency, and arguing that the permanent secretaries had been instructed by the Cabinet Ministers not to discuss any matter of dismissal during the state of emergency.
- 13 The complainants go on to state that when the representatives of the BFL trade unions negotiated with the Ministry of Agriculture and Marketing Society, the Acting Permanent Secretary of the Ministry disclosed the reason for dismissal as being political activities. "When the trade union officials of the BFL quoted ILO Convention No. 87 " continue the complainants " the Permanent Secretary declared that he had no comments to make thereon, but that on the instructions of the Cabinet Ministers his Ministry could not reinstate collectively dismissed workers nor pay their accrued rights such as money in lieu of notice, holidays with pay, gratuities and other legal remuneration ".
- 14 According to the complainants, when the BFL trade union officials negotiated with the Public Service Commission, which is supervised by the Prime Minister, the Prime Minister's secretary stated that the reason for the terminations was known to the employees and that he had been given instructions by his superiors not to discuss any matter relating to the dismissal of members of the BFL trade unions.
- 15 The complainants conclude by stating that "all these negotiations ended in deadlock, for the courts are suspended and the labour officer is working under the instructions of the Cabinet Ministers ".
- 16 The complainants go on to state that the following action has been taken against the following members of the National Executive Council of the BFL: General Secretary, Mr. Shakhane Mokhehle, interrogated and imprisoned without a court hearing; President, Mr. S. Lets'oara, interrogated and imprisoned without a court hearing, and then released; Lesotho Industrial, Commercial and Allied Workers' Union (LIAU): Chairman, Mr. B. R. Monese, interrogated and imprisoned without a court hearing; Secretary, Mr. P. Molatoli, interrogated, imprisoned and then released without a court hearing; Organising Secretary, Mr. O. S. Moremi, persecuted, interrogated and imprisoned without a court hearing; Committee member, Mr. T. Setlaba, persecuted, imprisoned and interrogated without a court hearing; Lesotho General Workers' Union (LGWU): Organising Secretary, Mr. M. N. Pekosela, persecuted; Committee member, Mr. T. Metsing, interrogated, persecuted and imprisoned without a court hearing; Lesotho Transport and Telecommunication Workers' Union (LTTU): Secretary, Mr. S. Moreke, imprisoned, persecuted and interrogated without a court hearing.
- 17 The complainants make the following allegations with respect to each of the trade unions affiliated to the BFL (see paragraph 10).
- 18 Members of the Lesotho Industrial, Commercial and Allied Workers' Union have been dismissed and their accrued rights and terminal benefits forfeited; in the case of Mr. T. Thamae and other white-collar workers such as Messrs. R. Pitse, N. Lenka and R. Sonopo, their terminal benefits have been forfeited. The Government has encouraged private enterprises such as wholesalers and retail shops to dismiss members of the LIAU. Mr. Mohale, who was employed by the wholesalers Moshal Gevisser, has been persecuted and imprisoned without a court hearing. Employees of the Public Works Department - i.e. of the Government - such as Messrs. M. Matlanyane, Tjama Mpela, Joseph Hlalele and other white-collar workers, have been dismissed without benefits.
- 19 The complainants declare that more members of the Lesotho General Workers' Union have been dismissed than of the other autonomous trade unions affiliated to the BFL. The members of the LGWU have been deprived of their accrued rights and legal entitlements such as holidays with pay, gratuities and money in lieu of notice. The complainants list the names of 55 persons said to have been dismissed from the Queen Elizabeth II Public Hospital, 23 persons allegedly dismissed from the Mohlomi Hospital, 11 persons dismissed from the Butha Buthe Hospital, 21 persons dismissed from the Mohale Hoek Government Hospital and 21 persons dismissed from the Department of Agriculture.
- 20 The complainants allege that the premises of the Maseru branch of the Lesotho Typographical Workers' Union were searched by troops and that the union's printing press was closed down and its national newspapers banned. Some of the workers-of whom Mr. Albert Khesuoe is an example-are said to have been imprisoned, interrogated and persecuted; the manager of the printing works, Mr. Setlolela Mokhachane, has been declared an outlaw and a reward of 200 rands has been promised to anyone who can reveal his whereabouts. According to the complainants, the premises of the Maseru branch have been requisitioned by the Government and members of that branch have been persecuted, interrogated and dismissed, their terminal benefits being forfeited. The persons in question are Mr. Seiso Majara, Mr. S. Kalaka, Mr. Lefa Seutloali, Mr. J. Sehalahala, Miss J. Jasong, Mr. Mots'oane and Mr. Mokati Mpholo. The complainants add that all these workers, and others not mentioned, have been interrogated and persecuted at the Deputy Prime Minister's residency by youth league party supporters and members of the armed forces. At Morija, continue the complainants, where the premises of the LTWU branch are owned by the Lesotho Evangelical Church, its printing press has been closed down, the church newspapers have been banned and the Chief Editor, Mr. S. Serutla, has been persecuted and imprisoned. All these events took place without any court hearing.
- 21 The complainants declare that members of the Lesotho Transport and Telecommunication Workers' Union have been dismissed from various government departments where they were employed, forfeiting their accrued rights and legal entitlements upon termination. The following persons are mentioned as having been dismissed in these circumstances: Mr. S. Ramohlanka, Mr. S. Moeletsi, Mr. E. Masia, Mr. D. Mochochoko, Mr. T. Moholobela, Mr. B. Pitso, Mr. M. Ramoko, Mr. M. Mohapi, Mr. D. Moeletsi, Mr. J. Mathe, Mr. L. Babeli, Mr. S. Masuoenyane, Mr. Mochekela, Mr. G. Rafutho, Mr. L. Kotola, Mr. M. Motseuoa, Mr. P. Leseli, Mrs. M. Mohapi and Mrs. Mpho. The Government is also said to have persecuted and imprisoned some members of the LTTU working for private firms such as the Standard Bank Ltd., and to have encouraged the Bank to deprive them of their terminal benefits. Mr. Mathakhoe, a driver for the Standard Bank, is said to have been persecuted and imprisoned and then released, and Mr. N. Sello, a messenger at the same bank, is alleged to have been imprisoned, interrogated and then released. The complainants assert that all these measures were taken without reasonable excuse and without a court hearing.
B. B. The Committee's conclusions
B. B. The Committee's conclusions
- Observations of the Committee
- 22 At the time the complaint was received, when Lesotho was still a Member of the ILO, it appeared to the Committee that the complainants' allegations, as formulated, called in question some of the standards laid down in the freedom of association Conventions, ratified by Lesotho, as well as generally recognised principles on the subject.
- 23 These principles are essentially as follows.
- 24 Freedom of assembly for trade union purposes and the right to express opinions through the press constitute one of the fundamental elements of trade union rights.
- 25 Workers should have the right, without distinction whatsoever-mainly without discrimination of any kind on the basis of political opinion-to join the union of their choice.
- 26 No person should be discriminated against in his employment by reason of his trade union activities or membership; not merely dismissal but also compulsory retirement or termination of services would be contrary to the principle that there should be no anti-union discrimination in respect of employment if the activities in respect of which action was taken against an employee were in fact lawful trade union activities.
- 27 In all cases, including cases in which trade unionists are charged with political or criminal offences which the government considers have no relation to their trade union functions, the persons in question should receive a prompt and fair trial by an independent and impartial judiciary. Irrespective of the opinion that might be formed as to the political aspects of a state of emergency, it is desirable that measures of detention should be accompanied by adequate judicial safeguards, applied within a reasonable period, and that all detained persons should receive a fair trial at the earliest possible moment.
- 28 It was because the principles set forth above appeared to have been called in question in the present case that the complainants' allegations were transmitted to the Government of Lesotho for observations in accordance with the usual procedure. However, in view of the Government's failure to furnish these observations to the ILO, it was impossible for the Committee to examine the substance of the case and submit conclusions and recommendations thereon to the Governing Body while Lesotho was still a Member of the ILO.
- Consequences of Lesotho's Withdrawal from the ILO
- 29 According to the procedure for the examination of complaints of alleged infringements of trade union rights agreed upon between the United Nations and the International Labour Organisation, before the Governing Body of the ILO refers to the Fact-Finding and Conciliation Commission on Freedom of Association an allegation which it has received against a Member of the United Nations which is not a Member of the ILO, such allegation should be referred to the Economic and Social Council for its consideration. In Resolution 277 (X), approving the arrangements, the ILO was invited to refer in the first instance to the Economic and Social Council any allegations regarding infringements of trade union rights against a Member of the United Nations which is not a Member of the ILO. If the Governing Body has before it such allegations regarding infringements of trade union rights, it will, before referring them to the Commission, refer them to the Economic and Social Council for consideration. The procedure provides that the Secretary-General of the United Nations will seek the consent of the government concerned before any consideration of the allegation by the Economic and Social Council; if such consent is not forthcoming, the Economic and Social Council will give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association involved in the case.
The Committee's recommendations
The Committee's recommendations
- 30. In these circumstances, having regard to the situation set forth in the preceding paragraph, the Committee recommends the Governing Body:
- (a) to refer to the Economic and Social Council for consideration, in accordance with Resolution 277 (X) of 17 February 1950, the complaint presented by the Lesotho General Workers' Union against the Government of Lesotho, which is no longer a Member of the ILO;
- (b) to note that, in accordance with Economic and Social Council Resolution No. 277 (X) of 17 February 1950, it is for the Economic and Social Council to decide what further action it proposes to take in the matter by seeking the consent of the Government of Lesotho to the case being referred to the Fact-Finding and Conciliation Commission on Freedom of Association or being dealt with in any other manner.
- Geneva, 11 November 1971. (Signed) Roberto AGO, Chairman.
