Report in which the committee requests to be kept informed of development - REPORT_NO370, October 2013

1. 685. The Committee last examined this case at its June 2012 meeting, when it presented an interim report to the Governing Body [see 364th Report, approved by the Governing Body at its 315th Session, paras 1009–1018].
2. 686. At its June 2013 meeting [see 368th Report, para. 5], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1971), it may present a report on the substance of the case at its next meeting even if the observations or information from the Government have not been received in due time. To date, the Government has not sent any information. However, on its visit to the country, a technical assistance mission of the Office was able to collect information on this case from the Government’s representatives.
3. 687. 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. 688. In its previous examination of the case, in June 2012, deploring the fact that, despite the time that had elapsed, the Government had not provided any information on the allegations, the Committee made the following recommendations [see 364th Report, para. 1018]:
   • (a) In general, the Committee can only deplore the fact that the Government has still not provided any information whatsoever regarding the five consecutive complaints presented since 2009, which have already been examined in the absence of the Government’s reply and which allege grave violations of freedom of association. The Committee notes once again with deep regret that the Government continues to fail to comply, despite assurances given to the Chairperson of the Committee at a meeting held in June 2011. The Committee expects the Government to be more cooperative in the future. With regard to the present case, the Committee deeply deplores the fact that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through three urgent appeals, to present its observations on the allegations and its reply to the recommendations made by the Committee.
   • (b) The Committee urges the Government to hold an independent inquiry without delay to elucidate the reasons for the arrests of the two Congolese Labour Confederation (CCT) trade unionists, Mr Richard Kambale Ndayango and Mr Israël Kanumbaya Yambasa, and of the President of the organization, Mr Nginamau Malaba, on 11, 16 and 19 January 2009, respectively, by National Intelligence Agency (ANR) agents; to ascertain the charges laid against them to justify their detention; and, if it is found that they were detained solely for reasons linked to their legitimate union activities, to release them immediately and punish those responsible in a manner sufficiently dissuasive to prevent any recurrence of such acts in the future, and compensate them for any lost wages.
   • (c) The Government is requested to provide copies of the relevant court decisions in this case, including the decision of 26 February 2009 of the Kinshasa/Gombe magistrate’s court, the decision of the appeals court for which a hearing was set for 13 March 2009, and to indicate any follow-up action taken.
   • (d) The Committee urges the Government to hold an inquiry without delay into the allegation that the three trade unionists concerned were held in custody for one month before obtaining a hearing and were subjected to inhumane and degrading treatment, and to indicate the outcome.
   • (e) The Committee requests the Government or the complainant organization to indicate the follow-up action taken on the complaint filed by the CCT with the Attorney-General of the Republic on 28 January 2009.
   • (f) The Committee requests the Government to accept a high-level mission to discuss all the complaints pending before the Committee concerning the Democratic Republic of the Congo.

B. The Committee’s conclusions

1. 689. The Committee notes with interest that the Government accepted a technical assistance mission from the International Labour Office to gather information on the various cases that have been examined by the Committee over the years without any real progress being made in following up on its recommendations. The Committee has taken note of the report of the technical assistance mission (set out in the appendix to this report) and welcomes the new spirit of cooperation demonstrated by the Government. It expects the recommendations it makes to be put into effect in the same spirit.
2. 690. Concerning the present case, the Committee takes note of the information that Mr Richard Kambale Ndayango, Mr Israël Kanumbaya Yambasa and Mr Nginamau Malaba, all of whom are representatives of the CCT at the Secretariat for Economic Affairs, were arrested in January 2009. They were then held in detention for a month on suspicion of forgery and using forged documents (production of a falsified mission order). On 2 March 2009, the judge of the Kinshasa/Gombe magistrates’ court ordered their release on bail on the grounds of a lack of evidence that they were guilty. However, the Public Prosecutor’s Office appealed the decision and they remained in prison. The Committee notes that they were released by an order of 18 March 2009 by the Gombe High Court, which confirmed the lack of evidence against them (the complainant organization provided the mission with copies of the court decisions).
3. 691. The Committee notes that the unionists filed a complaint in May 2009 with the Office of the Attorney-General of the Republic claiming that they had been ill-treated during their detention and seeking redress. However, the Committee notes that, to date, no follow-up action has been taken on their complaint. The Committee expects that measures will be taken without delay in order to examine the complaint submitted by the CCT members for unlawful detention and ill-treatment and requests the Government to keep it informed in this respect. The Committee expects that any decision will take into account compensation principles consistent with its previous recommendations (see paragraph 688(b)) above.
4. 692. The Committee notes the statement made to the mission by the representative of the Secretary-General for Economic Affairs indicating that the administration was not responsible for the arrest and detention of the trade unionists in question. It had just been a spectator of the situation and, when the trade unionists had been released, they had been able to return to their jobs and continue to exercise their trade union activities. The Committee notes that the trade unionists confirmed to the mission that they were carrying out their trade union activities without hindrance.
5. 693. The Committee deeply regrets the long period of detention undergone by the unionists (almost two months) solely on the grounds of there being “strong circumstantial evidence that they were guilty of forgery and of using forged documents” submitted by the Public Prosecutor’s Office, even though the courts that examined the case ruled that the Public Prosecutor’s Office was unable to prove the existence of such evidence. Therefore, even though no aspect of this case can be used to support the allegation that the arrest and detention of Mr Richard Kambale Ndayango, Mr Israël Kanumbaya Yambasa and Mr Nginamau Malaba were linked to their trade union activities, the Committee nevertheless notes that the events in question do not allow for this possibility to be discounted. On this issue, the Committee draws the Government’s attention to the principle that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 70]. The Committee expects the Government to ensure the strict observance of this principle of freedom of association.

Appendix

• Technical assistance mission of the International Labour Office to the Democratic Republic of the Congo (14–20 July 2013)

• A. Background
• 1. Since 2009, the Committee on Freedom of Association has received several complaints from different trade union confederations against the Government of the Democratic Republic of the Congo. To date, the Committee has received six complaints. In accordance with the Committee’s procedures, the Government has been invited to provide its observations in response to the allegations made in the complaints. However, until very recently, the Government had not provided a response with regard to any of the cases and, despite regular reminders by the Office, no observations, either on the allegations or on the Committee’s recommendations, were received by the Office. The Chairperson of the Committee on Freedom of Association has met with a Government delegation to reiterate the importance of providing information and, in this regard, the Committee has proposed on several occasions the technical assistance of the Office.
• 2. The Government sent partial information on three of the six cases in January 2013 and accepted an assistance mission from the Office to gather information on the cases. The mission, comprising a legal specialist on freedom of association issues from the International Labour Standards Department and the international labour standards specialist from the ILO office in Yaoundé, visited Kinshasa from 14 to 20 July 2013.
• 3. The mission benefited from the logistical support of the ILO office in Kinshasa and the cooperation of the Ministry of Labour to organize its schedule of meetings. The mission was therefore able to meet all the parties involved in the six cases being examined by the Committee, as well as the Minister for Labour and the Director of the Prime Minister’s Office (the Prime Minister himself was prevented from coming at the last minute).
• B. Information gathered by the mission on Case No. 2712
• 4. Concerning Case No. 2712, the mission met the CCT members involved at the organization’s headquarters. They were: Mr Nginamau Malaba, President of the CCT at the Ministry of the National Economy and Trade; Mr Richard Kambale Ndayango; and Mr Israël Kanumbaya Yambasa. The mission also held talks with a representative of the General Secretariat for Economic Affairs concerning the case.
• 5. According to the information gathered by the mission, Mr Kambale Ndayango, Mr Kanumbaya Yambasa and Mr Nginamau Malaba were arrested in January 2009 by agents of the National Intelligence Agency (ANR). They were held in detention for a month on suspicion of forgery and using forged documents (production of a falsified mission order). On 2 March 2009, the judge of the Kinshasa/Gombe magistrates’ court ordered their release on bail on the grounds of a lack of evidence that they were guilty. However, the Public Prosecutor’s Office appealed the decision and they remained in prison. Ruling on the appeal, the High Court in Gombe confirmed that there was no evidence that they were guilty and ordered their release on 18 March 2009. According to the unionists, they went back to work at the General Secretariat for Economic Affairs and have been exercising their trade union duties without hindrance. However, with the help of the African Association for the Defence of Human Rights (ASADHO), they filed a complaint in May 2009 to the Office of the Attorney-General of the Republic claiming that they were ill-treated during their detention and seeking redress. To date, no follow-up action has been taken on their complaint.
• 6. The representative of the Secretary-General for Economic Affairs told the mission that his administration was not responsible for the arrest and detention of the trade unionists in question. It had just been a spectator to the situation and, when the trade unionists had been released, they had been able to return to their jobs and continue to exercise their trade union activities.