Interim Report - REPORT_NO70, 1963

1. 327. The original complaint of the A.T.U.C.S.R is contained in four communications addressed directly to the I.L.O on 15 May, 21 May, 23 May and 13 August 1962. The Government furnished its observations on the first three communications by a letter dated 7 August 1962.
2. 328. These documents were before the Committee when it examined the case at its meeting in October 1962 and submitted to the Governing Body the conclusions contained in paragraphs 510 to 550 of its 66th Report, which was approved by the Governing Body on 8 November 1962 in the course of its 153rd Session.
3. 329. In that report the Committee submitted its definitive report to the Governing Body with regard to certain allegations relating to restrictions imposed by the Industrial Conciliation Act, 1959, on the right of trade unions freely to draw up their own Constitutions and rules, to the denial of the right of association to certain classes of workers, to restrictions imposed on the right to hold trade union meetings and to industrial inspectors. It submitted an interim report with regard to other allegations relating to the utilisation of the Law and Order (Maintenance) Act to restrict trade union activities and to the suppression of a strike called on 14 May 1962, concerning which it requested the Government to furnish further information.
4. 330. Since that time two further communications have been addressed to the I.L.O by the A.T.U.C.S.R.-the first consisting of a copy of a letter which it addressed to the Industrial Registrar on 30 November 1962, the second being a letter addressed to the I.L.O on 13 February 1963. The I.C.F.T.U submitted a complaint to the I.L.O on 7 December 1962.
5. 331. By a communication dated 10 May 1963 the Government of the United Kingdom furnished further information, as requested by the Committee, on the outstanding allegations referred to in paragraph 329 above, together with its observations on the later communications mentioned in paragraph 330 above, and the present report of the Committee is confined to these remaining matters.
6. 332. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has undertaken with the consent of the Government of Southern Rhodesia to apply its provisions without modification in Southern Rhodesia. The Government of the United Kingdom has also ratified 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), but has reserved its decision regarding the application of the provisions of these Conventions in Southern Rhodesia.

A. A. The complainants' allegations

• Allegations relating to the Utilisation of the Law and Order (Maintenance) Act and of the Unlawful Organisations Act to Restrict Trade Union Activities
  333. 333 According to the A.T.U.C.S.R the Government is using the Acts to suppress trade union activities; with a view to intimidating the workers, organising secretaries have been maltreated in the pursuance of their duties within their organisations; on 7 May 1962, the General Secretary of the Congress, Mr. J. T. Maluleke, was arrested when addressing strikers.
  334. 334 In its reply dated 7 August 1962 the Government stated that the purpose of the Law and Order (Maintenance) Act is to ensure protection of the community as a whole against unlawful actions designed to subvert law and order and that, as an integral part of the community, trade unions are subject to any restrictions applying to the public. At no time, declared the Government, had the Act or any similar legislation been applied to restrict genuine trade union activities or to intimidate the workers.
  335. 335 The Government stated that Mr. Maluleke was arrested, not because he was addressing strikers, but because in his address he made a statement which was alleged to be subversive or likely to cause a breach of the peace. The Government added that the case was sub judice and that he had been released on bail pending proceedings in the High Court.
  336. 336 The Committee, at its meeting in October 1962, observed that the complainant's allegations concerning the application of the Law and Order (Maintenance) Act were expressed in vague terms and were formally denied by the Government, which stated that the Act had never been used to restrict trade union activities. Only one precise fact emerged -the arrest and pending proceedings against Mr. Maluleke.
  337. 337 The Committee observed that in the past it has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded. In these circumstances the Committee requested the Government to be good enough to furnish information in due course as to the outcome of the pending proceedings, accompanied by a copy of the judgment handed down.
  338. 338 Further allegations concerning the Law and Order (Maintenance) Act, 1960, have now been made by the I.C.F.T.U in its communication dated 7 December 1962. The I.C.F.T.U refers to sections 8 to 13 of the 1960 Act and section 10 of the amending Act of 1962, which give the Minister, the magistrate or a police officer the power to prohibit public processions, public gatherings and public meetings if they are of the opinion or have reasonable grounds for believing that a breach of the peace is likely to occur or that public disorder is likely to be occasioned; section 29 of the amending Act of 1962, which empowers the Minister to ban a person from or restrict him to a given area if he is convicted of an offence associated with public disorder; section 29 of the Act of 1960 punishing incitement to strike in an essential service; section 15, empowering the police to enter premises when they have reasonable grounds for believing that a breach of the peace is likely to occur; sections 16, 19 and 39 of the 1960 Act prohibiting publications contrary to public safety, the display of banners, notices, etc., in a public place which are likely to lead to public disorder or to strike action, and the publication of statements likely to encourage any person to do any act which may endanger the public safety or disturb or interfere with public order; section 5 of the Act of 1962 requiring the recording of the proceedings of public gatherings.
  339. 339 The complainant also cites certain provisions of the Unlawful Organisations Act, 1959. Section 3 gives the Governor power to declare any organisation to be an unlawful organisation if it appears to him that the activities of the organisation or any of its members are likely to disturb or interfere with public order or are prejudicial to peace or good order. Other sections cited relate to offences in connection with any organisation after it has been declared unlawful.
  340. 340 The Government furnishes observations on the case of Mr. Maluleke and on the complaint of the I.C.F.T.U in its communication dated 10 May 1963.
  341. 341 The Government declares that the Law and Order (Maintenance) Act and the Unlawful Organisations Act are intended to preserve public order and are not directed against bona fide trade union activities, but trade union members, like all members of the public, are required to respect such security legislation. In the Government's view, the I.C.F.T.U has produced no evidence to show that these laws have been used against trade unions, while the prohibition of strikes in essential services is accompanied by machinery for the settlement of disputes by arbitration. The Government reminds the Committee that 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), do not apply to Southern Rhodesia. The legislation in question, declares the Government, does not interfere with the functioning of trade unions in Southern Rhodesia, where official policy is to encourage the growth of free trade unions under the Industrial Conciliation Act. There are now 52 registered trade unions and 77 joint industrial councils, which, in three years, have secured an increase of 50 per cent in the minimum wages in most industries.
  342. 342 With regard to the case of Mr. Maluleke the Government corrects its earlier statement that proceedings were pending in the High Court; in fact, the reference should have been to the Magistrate's court. On 8 September 1962 he was convicted on a charge, under section 32 (d) read with section 39 (1) (a) (ii) and (v) of the Law and Order (Maintenance) Act, of having made a subversive statement to a gathering including the words "There will be a time that you must fight the police." He was sentenced to a fine of £10 or, in default of payment, 14 days' imprisonment with hard labour, and also to a term of two months' imprisonment with hard labour, the latter sentence being suspended for three years on condition that he was not convicted of a similar crime during that period.
  343. 343 While a number of the provisions of the Law and Order (Maintenance) Act and of the Unlawful Organisations Act, to which the trade unions and their members are, as the Government admits, subject in common with the rest of the community, might in certain circumstances, if applied to trade unions or trade union members, then require to be examined from the point of view of their effect on the exercise of trade union rights, no specific instance of the application of the sections of the Acts cited in the complaints, apart from the case of Mr. Maluleke, has been alleged by either complainant.
  344. 344 Mr. Maluleke was prosecuted under the Law and Order (Maintenance) Act, but it would appear from the Government's reply that he was convicted by an ordinary court of law of making a statement in an address to strikers in which he used the words " There will be a time that you must fight the police "-a subversive statement which would seem clearly to go beyond what a trade union leader, like any other person, can make in a public address without incurring penal sanctions against which no privilege can be claimed by reason of the trade union status of the person concerned. The Committee, therefore, does not consider that the application of the provisions of the Law and Order (Maintenance) Act in this particular instance constituted an infringement of trade union rights.
  345. 345 In these circumstances the Committee, without prejudice to the possibility that it may be called upon to take cognizance of any allegations which might at any time in future come before it with regard to the application of the security legislation in question to trade unions or trade union members, recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Restrictions Imposed on the Right to Hold Trade Union Meetings
  346. 346 In paragraphs 529 to 537 of its 66th Report the Committee examined allegations to the effect that under the Law and Order (Maintenance) Act prior permission is necessary to hold a meeting, that police officers attend and interfere with meetings and that local authorities demand excessive deposits as security when meetings are held. The Committee recommended the Governing Body to decide that such part of the allegations as related to renting conditions imposed by local authorities did not call for further examination, but, with respect to the other aspects of the allegations, to draw the attention of the Government to the fact that the presence of police officers at trade union meetings may be considered as an interference, from which the public authorities should refrain, with the right of trade unions to hold meetings in freedom.
  347. 347 Since then the A.T.U.C.S.R has furnished further information on these matters and the Committee, therefore, has to consider whether any new elements are adduced therein of a nature to cause the Committee to reopen or examine further an aspect of the case which otherwise would have been regarded as closed.
  348. 348 Firstly, the A.T.U.C.S.R forwarded to the I.L.O a copy of a letter which it sent on 30 November 1962 to the Industrial Registrar of Southern Rhodesia. In this letter the organisation complains that three attempts by its Gwelo regional council to book accommodation for a trade union meeting failed because the police refused permission for the meeting, and a fourth attempt because the local authority demanded £15 for insurance and £2 for hire of premises. The A.T.U.C.S.R states that if all the authorities applied these rules it would mean a crippling payment of £13,050 to ensure that the 29 unions affiliated to it could each hold 30 meetings in the 30 areas.
  349. 349 Secondly, further allegations are made in the communication from this organisation dated 13 February 1963. It is alleged that when the organisation held its conference on 20 and 21 October 1962 and when its general council met on 19 and 20 January 1963, the police demanded the closure of the meetings before business was completed, threatening that otherwise they would break them up. Such conferences and general council meetings, declare the complainants, are strictly private members' meetings, and there is no law entitling the police to require application for permission to hold such meetings and the furnishing of the names of speakers and of the agenda, or giving them power to place tape recorders at the meetings.
  350. 350 The Government has furnished a copy of the reply of the Secretary of Labour to the letter referred to in paragraph 348 above. It is therein stated that a £15 deposit is required from an organisation, plus £2 for hire, if it wishes to use the Gwelo Municipal Main Hall for a public meeting lasting after 3 p.m., the deposit being returned if no damage is done. If the Games Room, holding up to 150 persons, is used, no deposit is required. No other local authority requires a deposit in addition to the hiring fee. The only meetings applied for by the A.T.U.C.S.R in the Gwelo area since May 1962, declares the Government, were one in the Games Room on 15 September 1962, for which permission was given, and the one referred to in paragraph 348 above, on 17 September in the Main Hall, which the local secretary of the complaining organisation cancelled because he could not furnish the " deposit. The Government refers, however, without refuting it, to a statement by the Gwelo organising secretary of the union to the effect that when he tried to book the Main Hall for a meeting on 1 December 1962, the " Controlling Authority refused permission because the agenda and nominated speakers were likely to be changed ".
  351. 351 In its communication dated 10 May 1963 the Government comments on the communication from the A.T.U.C.S.R dated 13 February 1963. The Government states that police were present at the meeting held on 20 and 21 October 1962 because there was reason to believe that disturbances were likely to break out; for the same reason the security legislation was invoked and a permit issued for the meeting to take place; the closing time stated in the permit was the time given by the A.T.U.C.S.R as the time the meeting would end and corresponded with the time for which the organisation had leased the premises. At that hour the meeting closed without incident, declares the Government, and the allegation that the police closed the meeting and made threats is unfounded. The Government denies that the police were present at a meeting on 19 and 20 January 1963.
  352. 352 In conclusion, the Government states: " The limited control which applied for a relatively short period has been abolished, and the Law and Order (Maintenance) Amendment Act, 1963, which provides for the control of meetings to be held on Sundays and public holidays, now expressly excludes private or public gatherings held by registered trade unions for bona fide trade union purposes. Nor does the control apply to private meetings of unregistered trade union organisations provided these are attended by 200 persons or less."
  353. 353 The additional evidence adduced with regard to the conditions governing the leasing of premises for union meetings does not add any really new elements to those mentioned in paragraph 532 of the 66th Report, on the basis of which the Committee concluded that this aspect of the matter did not call for further examination. The Committee, therefore, considers it unnecessary to reopen this question.
  354. 354 The position with regard to the extent to which private meetings of trade unions may be subject to restriction is not clear. The A.T.U.C.S.R maintains that in the last year its conferences and even its general council meetings, which it describes as private members' meetings, have been subject to the requirement of permission by the authorities, to furnishing the names of the speakers and the agenda, and to allowing tape recorders to be placed where they are held. Even the Government, in its own communication, refers without further comment to a statement by a union organising secretary that permission for a union meeting was withheld because the agenda and nominated speakers were likely to be changed. These restrictions, if indeed they are applied to private trade union meetings, would seem to be incompatible with the generally recognised right of trade unions to hold meetings in freedom. The fact that the presence of police officers at trade union meetings may also be an interference with this right was drawn by the Governing Body to the attention of the Government when adopting the 66th Report of the Committee. The Government, however, now refers to a new law-the Law and Order (Maintenance) Amendment Act, 1963-and states that the limited control which applied for a relatively short period has now been abolished, but does not specify just to what control reference is made.
  355. 355 In these circumstances, having regard to the new legislation now mentioned by the Government, the Committee requests the Government to state whether private trade union meetings, conferences, council and committee meetings are subject to permission by the police or other authorities and liable to be attended by police, whether their agendas and speakers must be announced in advance so that other items of trade union interest cannot be added to the agenda and other persons allowed to speak, subject to union rules, and whether the proceedings have to be recorded by tape recorders. In view also of the Government's reference to the fact that control does not apply to meetings of unregistered trade unions attended by 200 persons or less, the Committee, having regard to the fact that registration, though attended by advantages, is not compulsory, so that bona fide organisations may choose not to register, requests the Government to explain why a distinction is apparently made with regard to the freedom of meeting of such organisations.
• Allegations relating to the Suppression of the Strike Called on 14 May 1962
  356. 356 The complainants allege that following a strike on 14 May 1962 to protest against police interference in trade union activities and generally against the Government's attitude towards the trade union movement, the army and the police maltreated the strikers, shooting occurred which caused four deaths and many casualties, and more than 3,000 strikers were dismissed from their employment.
  357. 357 In its reply dated 7 August 1962 the Government gave the following version of these incidents. On 13 May 1962 a 24-hour general stoppage of work on the following day was called for as a " warning shot to the Government for better wages for African workers ". On Monday, 14 May 1962, the Government stated, it became obvious in the early hours of the morning that a definite prearranged pattern of intimidation and assault was being followed to prevent workers going to work. The police were ordered to protect workers going to their work, and this was done. Despite the intimidation and the threats of violence against their families, approximately 80 per cent of the workers proceeded to their work. No worker was compelled either to vacate his home or to go to work.
  358. 358 The Government went on to state that the failure of this strike influenced intimidators to increase their activities, and it became necessary in the afternoon to use force against those who were molesting returning workers and threatening life and property. " The police had to resort to the use of firearms on six occasions, resulting in the death of two and wounding of ten others, members of roving gangs threatening law-abiding workers returning from work." A limited number of troops was called out in the late afternoon of the 14th to give protection to the workers returning home.
  359. 359 With regard to the dismissals referred to by the complainants, the Government stated that many employers, " exasperated by the actions " of the strikers, instantly dismissed all workers who had failed to attend their employment on Monday, 14 May 1962. The Government indicated that employers' organisations supported employers in their action, but counselled review of each case and reinstatement if the employer was satisfied that the individual worker had been intimidated or had been too fearful of reprisals if he attended work. The Government did not have exact figures available, but the employers estimated that not more than 150 strikers actually lost their employment. Several workers had already been reinstated.
  360. 360 The Committee pointed out at its meeting in October 1962 that it has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights, and has recommended the Governing Body to affirm, on numerous occasions, that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests. The Committee, however, has rejected allegations relating to strikes by reason of their non-occupational character, or where they have been designed to coerce a government with respect to a political matter, or have been directed against the government's policy and not " in furtherance of a trade dispute ".
  361. 361 In the present case, while the complainants allege, among the motives for the strike, police interference in trade union activity and poor wages and bad conditions, the Government itself stated that the proclaimed reason for the strike was to give a warning to the Government for better wages for African workers. The strike appeared to have been a general strike called by the central African workers' organisation and, therefore, the Committee considered, the Government might have been partially involved, in its role as an employer, in the claims made for better wages. This seemed to the Committee, in accordance with the view it expressed in Case No. 221 relating to Aden in circumstances having certain points of analogy with the present case, to make it seem doubtful whether the allegations could be dismissed at the outset on the ground that the strike was not in furtherance of a trade dispute.
  362. 362 Before proceeding further with this aspect of the matter, or with respect to the Government's contention that the incidents of violence which took place were occasioned by the fact that the police were obliged to protect non-strikers against unlawful intimidation, the Committee observed that certain persons-four according to the complainants, two according to the Government-were killed when the police fired on strikers, and recalled in paragraph 544 of its 66th Report that, in cases in which the dispersal of public assemblies, etc., by the police, on grounds of public order or similar grounds, had involved loss of life, it had attached special importance to the circumstances being fully investigated by an immediate and independent special inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken by the police.
  363. 363 In these circumstances the Committee requested the Government to indicate whether any independent special inquiry had been instituted to investigate the circumstances in which certain persons involved in the strike in May 1962 lost their lives as a result of measures taken by the police and, if so, to inform the Committee as to the results of such inquiry.
  364. 364 In its communication dated 10 May 1963 the Government states that the two persons concerned lost their lives on 14 May 1962 when police were suppressing public violence during the strike in Salisbury. On 6 and 27 August 1962 magistrates in Salisbury conducted inquests, and verdicts of death due to gunshot wounds were brought in. Under the Inquests Act, 1951, as amended, it is the duty of a magistrate to transmit to the Attorney-General the record of every inquest, and this was done. The Attorney-General decided that no criminal proceedings could ensue.
  365. 365 The Committee observes that the only new information before it, in response to its request, is the fact that the inquests confirmed that the two persons concerned were actually shot. No special inquiry appears to have been held of the type referred to by the Committee in paragraph 544 of its 66th Report. However, in view of the fact that the records of the inquests referred to by the Government may be of assistance to the Committee not only in judging for itself the circumstances in which the two persons concerned lost their lives but also in formulating its conclusions on the allegations relating to the strike itself, the Committee requests the Government to be good enough to furnish copies of such records.
• Allegations relating to Preventive Detention
  366. 366 In its communication dated 7 December 1962 the I.C.F.T.U alleged that, pursuant to security legislation, the following eight officers of the A.T.U.C.S.R had been arrested, detained or subjected to restricted residence: Mr. T. E. Mswaka, President; Mr. S. Muteyauna, Treasurer; Mr. J. T. Maluleke, General Secretary; Mr. M. M. C. Nziramasanga, Financial Secretary; Mr. S. D. Makufa, former Treasurer; Mr. F. N. Msemburi, former Deputy President; Mr. E. Bvunzawabaya; and Mr. L. Nkala.
  367. 367 The Government gives the following information on these cases in its communication dated 10 May 1963.
  368. 368 Mr. Mswaka and Mr. Makufa were not under arrest, detention or restriction in December 1962, nor have they been since. They are on bail pending appeals against conviction and sentence on 19 September 1962 of having incited workers to continue an unlawful strike.
  369. 369 Mr. Muteyauna was not arrested until 31 December 1962, when he was charged with belonging to the Zimbabwe African People's Union (Z.A.P.U.), an illegal political organisation and not a trade union. He was convicted on 31 January 1963 and sentenced to nine months' imprisonment with hard labour. He is now on bail pending his appeal.
  370. 370 Messrs. Maluleke, Nziramasanga and Nkala were restricted to their villages from 20 September 1962 for a period of three months because of their association with the Z.A.P.U.
  371. 371 Mr. Msemburi or Nusemburi was convicted on 8 August 1962 of having, when addressing a meeting, accused the police of intimidation and of being reckless and ruthless, and sentenced to 12 months' imprisonment with hard labour, eight months of which was suspended for three years. He was released on 23 January 1963.
  372. 372 The Government thinks it probable that the Mr. E. Bvunzawabaya referred to is Mr. P. B. Bvunzawabaya, who was restricted to his village from 22 September 1962, for three months, because of his association with the Z.A.P.U. He has never come to notice as a trade unionist.
  373. 373 It would seem therefore that, of the eight persons referred to in the complaint, four - Messrs. Maluleke, Nziramasanga, Nkala and Bvunzawabaya-were subject to restriction orders for a period of three months, because of their membership of an illegal political movement, but are no longer so restricted. It would appear that Mr. Muteyauna was convicted of membership of an unlawful political organisation and that this conviction, therefore, did not arise out of his trade union activities. Mr. Msemburi's case resembles that of Mr. Maluleke considered in paragraph 344 above, in that he was convicted of making statements concerning the police of a nature contrary to penal law. The two remaining cases are considered below.
  374. 374 As none of the persons concerned appears at the present time to be subject to preventive detention or to a restriction order, the Committee considers that this aspect of the matter should be regarded as already covered by the recommendations on this question which it submitted to the Governing Body in Case No. 251 relating to Southern Rhodesia, and which are contained in paragraph 446 (a) of its 66th Report cited in paragraph 44 of the present report.
  375. 375 There remain the cases of Mr. Mswaka and Mr. Makufa, who are now on bail pending their appeals against conviction of having incited workers to continue an unlawful strike. As these are two cases in which a question affecting trade union rights may be involved, the Committee requests the Government to inform it in due course as to the outcome of the appeals which they have instituted.