Definitive Report - REPORT_NO101, 1968

1. 157. This matter has been before the Committee since 1964. Certain secondary allegations made by the complainants have been the subject of final recommendations approved by the Governing Body. They will not be considered in the following paragraphs, which deal only with the allegations still outstanding.

A. A. The complainants' allegations

• Background and First Examination of the Original Allegations
  158. 158 The original complaint is contained in a communication dated 7 November 1964, addressed directly to the I.L.O by the National Union of C.A.T.C. Unions of the Republic of the Congo. On 17 November 1964 this complaint was supported by the permanent representative in Geneva of the International Federation of Christian Trade Unions (I.F.C.T.U.), who, on 20 November 1964, submitted further allegations to the effect that arrests had been made. Lastly, in a telegram dated 23 November 1964, the African Trade Union Confederation made allegations concerning the same occurrences.
  159. 159 By a letter dated 27 November 1964 copies of these communications were forwarded to the Government for its observations. At the same time the Government's attention was drawn to the urgency of the matter.
  160. 160 On 24, 25 and 29 November 1964 three telegrams were sent to the I.L.O from, respectively, the I.F.C.T.U representative in Geneva, the Assistant Secretary-General of the I.F.C.T.U in Brussels, and (jointly) the Secretary-General and President of the I.F.C.T.U, referring to the arrest of Mr. Fulgence Biyaoula, President of the National Union of C.A.T.C. Unions of the Republic of the Congo, the maltreatment he was alleged to have suffered and the fears which were held for his life. This last message was communicated on receipt to the Minister of Foreign Affairs of Congo (Brazzaville) in a telegram dated 30 November 1964, which, in view of the seriousness of the allegations, invited him to forward any relevant information as speedily as possible.
  161. 161 At the same time, on the occasion of the Second African Regional Conference of the I.L.O, held in Addis Ababa from 30 November to 11 December 1964, the Director-General had several interviews concerning the matter with the Minister of Labour of Congo (Brazzaville), who was attending the Conference. The Director-General informed the Minister of the concern aroused by the allegations referred to in the preceding paragraph. The Minister assured the Director-General that Mr. Biyaoula had been arrested not because of his trade union activity but by reason of his having engaged in subversive political activities. In reply to questions put to him by the Director-General, the Minister assured him that Mr. Biyaoula was not being subjected to torture, that his life was not in danger at all, and that he would enjoy the guarantees of normal judicial procedure when he appeared in the near future before the courts, the decision of which, according to the Minister, would be given in December 1964.
  162. 162 Copies of the three telegrams mentioned in paragraph 160 above, as well as of a letter from the I.F.C.T.U dated 26 November 1964, were moreover brought to the attention of the Government, in accordance with the normal procedure, by a letter dated 3 December 1964. Statements by witnesses which had been sent to the I.L.O were also forwarded to the Government for its observations by a letter dated 4 December 1964. Lastly, the text of a communication from the I.F.C.T.U dated 6 January 1965, containing further allegations in support of the complaint, was sent to the Government for its observations by a letter dated 18 January 1965.
  163. 163 In its communication dated 7 November 1964 the National Union of C.A.T.C. Unions gave the following account of events. In August 1963 the most representative trade union organisations in Congo (Brazzaville), namely the Congolese National Union of the African Federation of Believing Workers (C.A.T.C.), the Congolese National Union of the African General Confederation of Labour (C.G.A.T.), and the Confederation of Free Trade Unions of the Congo (C.C.S.L.), in view of the developments which led to the revolution, decided to set up a national merger committee. This committee was intended to be independent of any political organisation and was also expected to respect the independence of its member bodies. After the revolution, however, the C.G.A.T and C.C.S.L. " appointed themselves the official trade union organisations of the single M.N.R party" and the C.A.T.C withdrew from the committee. The complainants allege that since this refusal on the part of the C.A.T.C to subject itself to the party in power the Government has placed every obstacle in the way of its activities. Its meetings, it is alleged, have been systematically banned, its active members have not been allowed to leave the country, have been threatened with arraignment before the People's Court on the pretext of endangering the security of the State, and, in general, have been in danger of losing not only their possessions but also their lives.
  164. 164 The communications subsequently received from the I.F.C.T.U allege that the C.A.T.C premises were ransacked and that a number of its leaders, including the President, Mr. Fulgence Biyaoula, were arrested, tortured and later interned by administrative order. Lastly, a law is stated to have been passed establishing a single trade union organisation - the Congolese Trade Union Confederation - and dissolving all other central trade union organisations.
  165. 165 In a communication dated 19 January 1965 the Government forwarded to the Director-General the Minister of Labour's reply, which was concerned solely with the complaint by the National Union of C.A.T.C. Unions dated 7 November 1964. In this reply the Minister confines himself to stating that " the Committee on Freedom of Association might designate one or more of its members to visit Congo (Brazzaville) at the I.L.O's expense to inquire on the spot into the allegations made by the critics of my country's Government ".
  166. 166 While taking note of this statement and without prejudice to any action that may later be taken on it, the Committee considered, when the case came before it at its February 1965 Session, that at that stage it should once more urge the Government to be good enough to furnish detailed observations on each of the specific allegations made by the various complaining organisations. Further, having noted the assurances given to the Director-General by the Minister of Labour at Addis Ababa, the Committee wished to have information as to whether the said assurances had in fact been complied with.
  167. 167 In these circumstances the Committee recommended the Governing Body:
       • (a) to reaffirm strongly the importance it attaches to the principles:
       • (i) that workers should have the right to establish and join organisations of their own choosing;
       • (ii) that workers' organisations should have the right to elect their representatives in full freedom, and that such representatives should be protected against any action being taken against them by reason of their trade union activities;
       • (iii) that trade unions should not be liable to be dissolved by administrative authority;
       • (b) to emphasise that measures of detention of trade unionists may involve a serious interference with the exercise of trade union rights if they are not accompanied by adequate judicial safeguards and to stress that it should be the policy of every government to take care to ensure the observance of human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment by an impartial and independent judicial authority;
       • (c) to request the Government to be good enough to furnish detailed observations on the allegations referred to in paragraphs 187 and 188 of this report and information as to whether the assurances given to the Director-General by the Minister of Labour in the course of their interviews in Addis Ababa, referred to in paragraph 180 of this report, have been respected and, in particular, as to whether Mr. Biyaoula has received a fair trial attended by all the guarantees of normal judicial procedure and, if so, to be good enough to furnish a copy of the judgment and of the reasons adduced therein.
  168. 168 The above recommendation having been approved by the Governing Body at its 161st Session (March 1965), the Committee's conclusions were communicated to the Government by a letter dated 10 March 1965. The Government replied by a communication dated 29 April 1965.
  169. 169 The case again came before the Committee at its May 1965 Session. The Committee observed that the Government, in its communication dated 29 April 1965, had failed to answer the specific questions asked in subparagraph (c) of the paragraph quoted in paragraph 167 above and had confined itself to renewing the invitation to the Committee to visit the Congo to which reference is made in paragraph 165 above.
  170. 170 In these circumstances the Committee felt that it must reaffirm the conclusions set forth in subparagraphs (a) and (b), quoted in paragraph 167 above, and recommended that the Governing Body strongly urge the Government to be good enough to furnish the observations requested of it in subparagraph (c) already quoted.
  171. 171 Further, the Committee wished to point out that in almost all the cases which have come before it, the governments concerned have not failed to co-operate in establishing facts, especially by furnishing the observations and information requested by the Committee or the Governing Body.
  172. 172 Lastly, the Committee felt compelled to recommend the Governing Body to draw the attention of the Government of Congo (Brazzaville) to the resolution concerning freedom of association and protection of the right to organise adopted by the First African Regional Conference of the International Labour Organisation (Lagos, December 1960), which, in paragraph 7, " requests the Governing Body of the International Labour Office to invite governments in respect of whose countries complaints may be made to the Governing Body Committee on Freedom of Association to give their wholehearted co-operation to that Committee, in particular by replying to requests for observations made to them and by taking the fullest possible account of any recommendations which may be made to them by the Governing Body following examination of such complaints ", and, in paragraph 8, " requests the Governing Body to accelerate as far as possible the procedure of its Committee on Freedom of Association and to give greater publicity to the conclusions of that Committee, particularly when certain governments refuse to co-operate loyally in the consideration of complaints submitted to them ".
  173. 173 These conclusions of the Committee, having been approved by the Governing Body at its 162nd Session in May 1965, were communicated to the Government by a letter dated 8 June 1965.
• Examination of Further Allegations; Continuation of Examination of the Original Allegations
  174. 174 On 6 July 1965 the Director-General received a telegraphic communication signed by the President and Secretary-General of the I.F.C.T.U informing him that the trade unionists imprisoned in Brazzaville were due at any moment to be arraigned before a People's Court, and seeking his " energetic and urgent " intervention. Following the receipt of this communication, the Director-General, on 8 July 1965, cabled its contents to the Minister of Foreign Affairs of Congo (Brazzaville), urging that the matter be given special attention and that the Director-General be kept informed of developments.
  175. 175 Noting that this communication from the Director-General remained unanswered, the Committee, at its November 1965 Session, recommended the Governing Body to express its grave concern at the failure of the Government of Congo (Brazzaville) to reply to the communication of the Director-General dated 8 July 1965 relating to trade unionists imprisoned in Brazzaville, who were alleged to be due to appear at any moment before a People's Court.
  176. 176 The Committee, having noted that the Government had likewise failed to reply to the requests made in connection with the original allegations in the conclusions referred to in paragraphs 167, 170, 171 and 172 above, recommended the Governing Body to confirm those conclusions and request the Government once again to furnish all the information requested.
  177. 177 The conclusions reached at the November 1965 Session of the Committee were approved by the Governing Body and communicated to the Government on 23 November 1965.
  178. 178 The case again came before the Committee at its November 1966 Session, a full year after its last examination of the case, during which period the Government had still not furnished the information which had repeatedly been requested of it. At the same time the Committee had before it further allegations relating to the sentencing to death in his absence of Mr. Gilbert Pongault, General Secretary of the Pan-African Workers' Congress; these allegations had been transmitted to the Government, for its observations, in a telegraphic communication dated 28 July 1966. The Committee expressed itself in the following terms:
• The Committee adjourned until its next session its examination of the case relating to Congo (Brazzaville) (Case No. 419), in which it is still awaiting further information previously requested from the government concerned, as well as observations on further allegations. With regard to the serious allegations contained in the original complaints first examined by the Committee at its meeting in February 1965 and reported on to the Governing Body in paragraphs 176 to 193 of its 81st Report and 504 to 515 of its 85th Report, requests to furnish further information have been addressed to the government concerned on no less than ten separate occasions but such information has never been received.
• Further allegations relating to the sentencing to death in his absence, on 25 July 1966 by a People's Court in Brazzaville, of Mr. Gilbert Pongault, General Secretary of the Pan-African Workers' Congress and Vice-President of the African Federation of Believing Workers, who was a Workers' deputy member of the Governing Body from 1963 to 1966, were transmitted to the government concerned for its observations on 18 August 1966, but no reply has been received from the Government. The Committee is particularly concerned by this failure to furnish observations on these grave allegations relating to the sentencing to death in his absence of a person who was until a few days preceding his sentence a deputy member of the Governing Body and to reply to repeated requests for information in respect of allegations relating to measures taken against other leading trade unionists of Congo (Brazzaville) and the National Union of C.A.T.C. Unions, and requests the government concerned to furnish the observations and information in question as a matter of special urgency.
  179. 179 These conclusions were approved by the Governing Body at its 167th Session (November 1966) and communicated to the Government by a letter dated 22 November 1966, followed by a letter of reminder despatched on 9 January 1967.
  180. 180 When the case most recently came before it at its February 1967 Session, the Committee noted that the Government had failed to reply to the numerous requests for observations and information addressed to it. Accordingly, it requested the Government to furnish, as a matter of special urgency, the observations and information in question " so that they may be taken into account by the Committee at its next session, at which it proposes in any event to submit its conclusions on the case to the Governing Body."
  181. 181 By a letter dated 2 March 1967 this decision, as approved by the Governing Body at its 168th Session (February-March 1967), was brought to the notice of the Government, which replied in a communication dated 30 May 1967.
• Examination of the Government's Observations
  182. 182 In its communication of 30 May 1967 the Government states that it follows the doctrine that a clear distinction should be drawn between trade union matters properly so called and matters involving real danger to the security of the State. Trade union matters are problems which must be related strictly to trade unions, and arise essentially from or in connection with the exercise of trade union rights; only in such cases, states the Government, " can there be freedom of association ". Matters relating strictly to the security of the State are purely political or involve cases in which trade union rights and " trade union ideas " are not in any way at issue. When a trade unionist is accused of endangering the security of the State, the Government continues, it is on account of activities distinct from his trade union activities as such.
  183. 183 The Government recalls that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provides that " in exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land ". This very explicit provision, the Government states, amply proves that the doctrine followed by the Republic of the Congo with regard to trade unionists is sound " in national and International Labour law, since, when trade unionists are involved, it necessarily draws a distinction between trade union activities properly so called and activities which may be separated from these."
  184. 184 The Government goes on to state that, strengthened in its convictions by the legal principles set forth above, it is determined to defend the sovereignty of the Congolese State and effectively to exercise the rights enjoyed by the government of any sovereign country as regards law and order, the public peace and public welfare; hence it is in no circumstances prepared to renounce the exercise of the powers with which it has been invested, " legally and legitimately ", by the people of the Congo. " Therefore ", states the Government, " let it be clearly understood by all - individual and corporate persons alike - that activities prejudicial to the security of the State on any pretext whatsoever cannot be tolerated. The Government is therefore fully within its rights in deciding, as it has, that intervention by the Committee on Freedom of Association, by the I.L.O or by any other body in matters affecting trade unionists will be taken into consideration only in so far as it relates to the protection of trade union freedoms properly so called, that is to say the protection of trade unionists who are subjected to real harassment because of their genuine trade union activities. To insist at all costs on intervening solely because the person in question happens to be a trade unionist, completely and stubbornly overlooking his non-trade union activities, would appear to be a wilful and inadmissible attempt to disregard the sovereignty of the State and its government."
  185. 185 The Government provides the following information concerning the particular case of Mr. Pongault mentioned in paragraph 178 above. Like all other Congolese, and like all other Congolese trade unionists whichever trade union movement they belonged to, Mr. Pongault played a part in the revolution which took place on 13, 14 and 15 August 1963. As soon as the new regime was installed, he embarked on a political career, taking such an active part in establishing the organs of the National Revolutionary Movement (the one and only people's party in the Congo) that, until the day he was sentenced, he was a member of the Central Committee of the Party and remained in office until he left the country.
  186. 186 His political ambitions having been frustrated as a result of the elections which took place at the end of 1963, Mr. Pongault, the Government continues, deliberately took up the struggle in the political arena while devoting more time to trade union activities, which, moreover, were more international than national in character. For this reason the last attempts made in 1964 by Mr. Pongault to gain control of the Congolese working class ended in complete failure. Whatever claims he may advance as regards the national trade union movement, the Government states, Mr. Pongault no longer means anything to the Congolese working class.
  187. 187 Turning to the question of morality and integrity, and also as regards Mr. Pongault's honesty, the Government declares that the documents discovered after the revolution " are sufficiently revealing as regards the nature of the relationship which had existed under the former régime between Pongault the trade unionist and Fulbert Youlou. Documents written in Youlou's own hand concerning the management of the secret funds of the former regime show that, although Gilbert Pongault may have appeared as a competent and honest trade unionist, he was in reality corrupt, drawing regular secret payments from the secret funds of the Republic, while since 1958 he had also maintained a regular secret correspondence with Youlou, correspondence unworthy of a really honest trade unionist ".
  188. 188 The Government goes on to state that the distinction between Mr. Pongault's political and trade union activities, whether in the Congo or abroad, had been all the easier to make by reason of the very serious blunders made by him since he left the Congo in his contacts with Congolese abroad, and especially with Congolese army officers on mission.
  189. 189 The Government declares that because of Mr. Pongault's subversive political activities, proceedings against him were begun in 1965 on the grounds of subversive activities, traffic in arms and munitions, and endangering the internal and external security of the State. These proceedings led to his indictment. The Committee of Inquiry provided for by Act No. 29/64 of 9 September 1964 (the Act which instituted the People's Court) undertook the necessary preliminary investigations. This body, after a meticulous study of the charges and most careful investigations, concluded that there was sufficient evidence to support the charges that in 1964 and 1965 the accused had been an accessory to the offence of traffic in arms and munitions, that he had committed the crime of endangering the internal and external security of the State and that he had attacked and brought into disrepute the authority exercised by the Executive by virtue of Constitutional laws; it was decided, in consequence, that Mr. Pongault would be arraigned before the People's Court, there to be judged in accordance with the law.
  190. 190 Mr. Pongault, the Government declares, on learning of these charges while the preliminary investigations were proceeding, " determined, come what may, to remove himself from the reach of justice " by leaving the country. " In this case ", the Government affirms, " all notices to be served on the accused as required by law were duly delivered to Mr. Pongault's Brazzaville residence, where it was invariably stated that the person concerned had departed without leaving an address ". For this reason, the Government states, Mr. Pongault's entire trial took place in his absence.
  191. 191 The Government affirms that Mr. Pongault's case is essentially a political one, and that the reprehensible activities of which he was accused (especially his contacts with Congolese Army officers on mission abroad) were in no way related to his trade union activities. " The reason why the Government of Congo (Brazzaville) refuses to acknowledge that anybody or any organisation has the right to pronounce on the Government's actions or to dictate the means whereby the Government should ensure that its citizens respect the law (whether they be trade unionists or not), is its conviction that the Pongault case has nothing whatever to do with the accused's trade union activities."
  192. 192 In conclusion, the Government asks the I.L.O. " kindly to note that this is the last time the Government of Congo (Brazzaville) will furnish an answer to any body which may feel induced to intervene anew on the absurd pretext that there has been a breach of freedom of association ".

B. B. The Committee's conclusions

1. 193. The Committee notes, in the first place, that apart from some considerations of a general nature, the Government's observations relate only to the charges brought against Mr. Pongault and do not take up the other allegations made in the present case. These allegations relate mainly to the arrest of the leaders of the National Union of C.A.T.C. Unions, among them its President, Mr. Biyaoula, who, the Committee has learned, was freed in August 1967; to the ill-treatment to which they are said to have been subjected; to the administrative order of internment said to have been made against them; to the prohibition of the holding of meetings by their organisation, because, it is alleged, this organisation had refused to subject itself to the political party in power; and, finally, to the establishment by law of a single trade union organisation, all other central trade union organisations being dissolved.
2. 194. Having noted, in the light of the Government's statement reproduced in paragraph 192 above, that it would appear that the Government does not intend to pursue the matter any further with the Committee on Freedom of Association and the Governing Body, the Committee feels compelled to recommend the Governing Body:
   • (a) to deplore that, despite the numerous appeals addressed to it to do so, the Government has not deemed it expedient to furnish the observations and information requested, thus making it impossible for the Committee accurately to establish the facts;
   • (b) to recall that Congo (Brazzaville) is a party to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and is thus formally bound to respect the provisions thereof;
   • (c) to recall the importance which should be attached to the principle contained in Article 2 of Convention No. 87, according to which workers and employers shall have the right to establish and join organisations of their own choosing;
   • (d) to recall the importance which should be attached to the principle contained in Article 3 of Convention No. 87, according to which workers shall have the right to elect their representatives in full freedom and the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (e) to recall the importance which should be attached to the principle contained in Article 4 of Convention No. 87, according to which workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority;
   • (f) to recall the provisions of paragraph 2 of Article 8 of Convention No. 87, according to which the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention;
   • (g) to recall that freedom of assembly is essential to the free exercise of trade union rights;
   • (h) to emphasise that measures of detention of trade unionists may involve a serious interference with the exercise of trade union rights if they are not accompanied by adequate judicial safeguards and to stress that it should be the policy of every government to take care to ensure the observance of human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment by an impartial and independent judicial authority.
3. 195. With regard to the observations submitted by the Government concerning the case of Mr. Pongault, the Committee considers that it should deal in the first place with the Government's statement quoted in paragraph 191 above to the effect that " the reason why the Government of Congo (Brazzaville) refuses to acknowledge that anybody or any organisation has the right to pronounce on the Government's actions... is its conviction that the Pongault case has nothing whatever to do with the accused's trade union activities ".
4. 196. On this particular point the Committee wishes to point out, as it has done in numerous cases in the past, that when governments have appeared to judge as sufficient a reply in general terms to the effect that the detention or sentencing of trade unionists has been due to unlawful or subversive activity and not to their trade union activities, it has considered that the question whether the matter in respect of which sentences have been imposed or detentions ordered is to be regarded as a matter relating to a criminal or political offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned in such a manner as to prevent the Governing Body from inquiring further into it.
5. 197. Having clarified this point, the Committee notes that the assertions made by the complainants and those made by the Government are divergent in almost every respect.
6. 198. Whereas the Government affirms that Mr. Pongault embarked on a political career following the revolution and after the elections held at the end of 1963 took up the " struggle in the political arena ", the complainants, and Mr. Pongault himself in statements he made to the Office, affirm that he had refrained from political activities. It is claimed that, having taken part in the revolution, he declined, on the contrary, to assume political functions such as those of a deputy or in any other capacity, and that if he considered playing any part in founding a political party, he did so in his capacity as a trade unionist.
7. 199. Whereas the Government states that Mr. Pongault had been corrupt and had been secretly paid out of the funds of the former régime of Fulbert Youlou a the complainants and Mr. Pongault himself affirm that the only allowances drawn by him were those to which he was entitled as a member of the Council of the French Community (when Congo (Brazzaville) belonged to it) and that the allowances in question had been paid in part by the French Government and in part by the Government of Congo (Brazzaville), further to a law voted by the Assembly presided over by Mr. Massemba-Debat.
8. 200. Whereas the Government declares that the proceedings taken against Mr. Pongault were founded exclusively on his subversive political activities the complainants, and Mr. Pongault himself in a memorandum submitted by the I.F.C.T.U on 29 September 1965 in support of its complaint, affirm that the reason for the measures taken by the Government was to be found in a divergence of views between Mr. Pongault and the Government as to the part the trade union movement should play in building the nation; according to the complainants the Government's intention was that the trade union movement should merely provide a channel for the transmission of instructions emanating from the single political party, whereas Mr. Pongault wanted to uphold the traditional role of trade unions, while accepting some degree of co-operation with the party.
9. 201. Whereas the Government states that an inquiry had revealed that Mr. Pongault had engaged in subversive activities, in arms trafficking, and in activities endangering the security of the State (for which crimes he was sentenced), the complainants state that Mr. Pongault had never been guilty of these crimes and claim that the charges in question constituted a plot against his life.
10. 202. Whereas the Government maintains that all notices to be served on the accused as required by the law were duly delivered to Mr. Pongault's residence, the complainants claim that this was not the case; they also maintain that Mr. Pongault was never summoned as the accused in the course of the trial, but only as a witness; finally, they affirm that during the inquiries into the charge of engaging in arms traffic no warrant for Mr. Pongault's arrest was ever issued and that he was never summoned as a witness.
11. 203. The Committee notes that it has before it conflicting statements made by the complainants and the Government; it appeared, however, that the proceedings taken against Mr. Pongault had their origin in a conflict of views as to the part the trade union movement should play in building the nation. In any case, it wishes to stress the importance which should be attached, in all criminal proceedings, to ensuring that all the guarantees of normal judicial procedure are respected.