Report in which the committee requests to be kept informed of development - REPORT_NO384, March 2018

1. 494. The Independent Union of Tax and Domain Officers (SAID) and the Authentic Union of Customs Inspectors and Officers (AIOD) presented the complaint in communications dated 3 and 31 March and 7 June 2016.
2. 495. The Government sent its observations in communications dated 23 May and 7 July 2017.
3. 496. Senegal 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. The complainants’ allegations

1. 497. In their communications of 3 and 31 March and 7 June 2016, the complainant organizations expressed their regret to the fact that Senegal is the only member of the West African Economic and Monetary Union (WAEMU) whose customs officials are not represented by a trade union. This observation, made by the committee on follow-up to the regional forum of WAEMU customs workers at a meeting held in Dakar in December 2011, led the AIOD’s members to call for the amendment of Act No. 69-64 of 30 October 1969 on Customs Staff Regulations in order to bring it into line with International Labour Organization (ILO) Convention No. 87, ratified by Senegal, and with the Universal Declaration of Human Rights.
2. 498. The complainants are of the view that the provisions of section 8 of the aforementioned Customs Staff Regulations are in breach of the provisions of Articles 2, 3 and 8 of Convention No. 87, noting that “customs personnel of any grade level, whether in active service, on secondment or on standby, are bound at all times by the following rules: They are not eligible; they do not have the right to strike or to organize; and their freedom of expression, movement, assembly and association is, by decree, subject to the needs of the service”. Not only do these legal provisions deprive customs officials of the freedom to exercise their right to organize (including the right to freedom of assembly and expression); they are also the main obstacle to the establishment of a WAEMU regional federation of unions of customs officials and a federation of unions of financial authorities in Senegal (including tax, treasury and customs officials).
3. 499. The complainants allege that AIOD members and supporters have been subjected to arbitrary, disproportionate retaliatory measures since December 2011, when they attended the meeting of the committee on follow-up to the regional forum of WAEMU customs workers. For example, the General Director of Customs notified two customs inspectors, Mr Ndiaga Soumaré and Mr Pape Djigdjam Diop, of disciplinary measures contained in decisions taken on 8 and 16 December 2011, suspending them from work for 30 days for alleged “participation in a public meeting relating to trade union activities and taking a position that discredits institutions”. Subsequently, pursuant to MEF/DGD/DPL/BP services notes Nos 01467 and 01480 of 13 and 20 December 2011, the Ministry of the Economy and Finance dismissed the aforementioned customs inspectors from their posts as Heads of the Criminal Investigation and Narcotics Department (BICS) and of the Corporate and Private Sector Regulatory Department (BREP), respectively.
4. 500. In addition, the names of the two customs inspectors, unlike those of their colleagues on the same career progression track, did not appear on the list of promotions in the customs inspectors and officials unit for 2013 and prior years, contained in Presidential Decree No. 2013-733 of 7 June 2013. Consequently, they were not eligible for promotion to the level of principal inspector, grade two, step one, even though they met the legal requirement for time served after receiving a diploma from the National School of Public Administration (ENA). The Personnel and Logistics Director’s explanation of the omission of Mr Soumaré’s name from the Presidential Decree was that although he was “very intelligent and professional, his conduct had nevertheless been unsatisfactory. His advocacy, which ran counter to the current provisions of the Customs Staff Regulations, prevented him from being assessed in a positive light”. Only after 11 months was Mr Soumaré’s name finally included in the list of inspector promotions (Presidential Decree No. 2014-572 of 6 May 2014) and it was 13 months before he was assigned. The administrative measures taken against Mr Soumaré and Mr Diop were clearly intended to penalize them for expressing their support for the unionization of customs workers and constitute a breach of Convention No. 87.
5. 501. The complainant organizations protest the scope of the judgments of the country’s highest authorities, namely the Constitutional Council and the Administrative Chamber of the Supreme Court, on the issue at hand (see attached) and maintain that these rulings run counter to the position of the Committee on Freedom of Association. Specifically, they invoke Constitutional Court ruling No. 2/C/2013 of 18 July 2013 and Supreme Court ruling No. 61 of 12 December 2013. Both rulings were based on one of the Committee’s cases relating to the exercise of the right to strike (Case No. 1719, 304th Report, and Case No. 2383, 336th Report), on the basis of which the Council and the Court concluded that in the ILO’s view, “freedom of association is not absolute and lawmakers may prohibit the exercise of this freedom where necessary”. The complainant organizations consider that by basing their judgment on the reports of the Committee on Freedom of Association and concluding that section 8 of the Customs Staff Regulations did not violate the right to freedom of association or the Universal Declaration of Human Rights, the Constitutional Council and the Administrative Chamber of the Supreme Court misinterpreted the Committee’s conclusions.
6. 502. The complainant organizations draw attention to the principle set out by the Committee on Freedom of Association during its examination of a case in which it clearly indicated that customs officials are covered by Convention No. 87 and therefore have the right to organize (Case No. 2288, 333rd Report). However, the various procedural appeals (amendment of a decision on purely procedural grounds) lodged since 2013 for breach of Convention No. 87 are still pending. According to the SAID and the AIOD, this amounts to denial of justice.
7. 503. Lastly, the complainant organizations note that, in parallel to the legal proceedings, the Ombudsperson, an independent administrative authority, has received two appeals pertaining exclusively to regularization of the administrative status of the sanctioned customs workers. The first was lodged on 13 September 2012 in response to the administrative authority’s refusal to appoint Mr Soumaré, nine months after he had been relieved of duty, in breach of section 20 of Act No. 69-64 of 30 October 1969 (the Customs Staff Regulations Act). The second, lodged on 17 June 2013, was prompted by the omission of Mr Soumaré’s name from the list of promotions to the grade of principal customs inspector, grade two, step one, contained in Presidential Decree No. 2013-733. The complainant organizations object to the statement, in the annual report of the Ombudsperson (2012–13), that “neither freedom of association nor the right to strike is absolute and lawmakers may restrict or prohibit the freedom of association and the right to strike of customs officials, including where there is an overriding need”. Not only does this statement exceed the mandate of the Ombudsperson, who may not intervene in court proceedings or question the soundness of a judicial ruling; it also restricts customs officials’ protection from acts of anti-union discrimination.

B. The Government’s reply

1. 504. In its communications of 23 May and 7 July 2017, the Government provided its comments in response to the allegations made by the SAID and the AIOD.
2. 505. First, the Government states that if the AIOD wished to become an affiliate of the SAID, it did not send legal notification to the labour administration responsible for the enforcement of the national legislation governing trade union rights. In the case in point, the aforementioned affiliation has no legal basis since, in accordance with section 8 of Act No. 69-64 of 30 October 1969 (the Customs Staff Regulations Act), this category of civil servant, which has paramilitary status, is strictly prohibited from exercising the right to organize or participating in trade union activities.
3. 506. This breach of section 8 of the Customs Staff Regulations led to the disciplinary measures imposed on Mr Soumaré and Mr Diop, both of whom were principal customs inspectors and AIOD leaders. Both of them lodged a complaint of abuse of power with the Supreme Court, which referred the case to the Constitutional Court through an unconstitutionality procedure so that the Council could review the constitutional validity of section 8 of Act No. 69-64 of 30 October 1969. Subsequently, in its ruling No. 2/C/2013 of 18 July 2013, the Court ruled that section 8 was consistent with the Constitution of Senegal. For its part, the Supreme Court, after reviewing the other substantive grounds raised and the Act’s compliance with ILO Convention No. 87, ruled that section 8 was consistent with the principles of the right to organize under the Convention and dismissed the claimants’ complaint in ruling No. 61 of 12 December 2013. Consequently, the AIOD lodged a complaint raising a number of issues with the Committee on Freedom of Association. In support of its allegations, the AIOD also mentioned sections 8 and 25 of the Constitution of Senegal, which guarantee exercise of the fundamental freedoms, including the right to organize and the right to strike, respectively.
4. 507. The Government recalls that, pursuant to section 8 of the Customs Staff Regulations, customs personnel of any grade level, whether in active service, on secondment or on standby, are bound at all times by rules which, among other things, prohibit them from exercising the right to strike and the right to organize. Nevertheless, it should be noted at the outset that, in Senegal, customs officials are part of the paramilitary, which ensure the State’s defence and security. Therefore, owing to the nature of their functions, they are governed by specific provisions, including crucial restrictions that are essential in light of the overriding need to ensure national security and public welfare at all times. Consequently, in its examination of the constitutionality of section 8 of the Customs Staff Regulations in the case referred to it by the Supreme Court, the Constitutional Court stated, in ruling No. 2/C/2013 of 18 July 2013, that “neither freedom of association nor the right to strike is absolute” and that, pursuant to section 25 of the Constitution of Senegal on the exercise of this freedom and right, “it is the constituent’s understanding that there are restrictions on freedom of assembly and the right to strike owing to the need to strike a balance between the defence of professional interests and the public good”.
5. 508. The Government recalls that in a prior case examined by the Committee on Freedom of Association, the Committee had deemed that “officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike (part of the freedom of association) could thus be subject to restrictions, such as its suspension or even prohibition” (Case No. 2383, 336th Report). The Government notes that the Administrative Chamber of the Supreme Court, per its ruling No. 61 of 12 December 2013 relating to the claimants’ complaint of abuse of power, dismissed AIOD’s appeal. Indeed, after reviewing the issue of the compliance of section 8 of the Customs Staff Regulations with Senegal’s Constitution, its section 98 in particular, the Supreme Court concluded that this article did in fact comply with international standards governing the right to organize, especially since this article had already been deemed to comply with the Constitution, which already incorporates these various international instruments. In support of its ruling, the Supreme Court fittingly cited a case which had been reviewed by the Committee on Freedom of Association, in which the Committee had concluded that “the prohibition of the right to strike of customs officials, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association” (Case No. 1719, 304th Report). In the light of the above, the Government is of the view that neither the freedom of association nor the right to strike is absolute, and the lawmaker may restrict or prohibit the exercise of this freedom and right in the event of an overriding need relating to defence, national security, or ensuring the public good, as under section 8 of Act No. 69-64 of 30 October 1969 on Customs Staff Regulations.
6. 509. As regards the allegation that the administrative measures imposed on Mr Soumaré and Mr Diop are in breach of Convention No. 87, the Government notes that, during the meeting of the committee on follow-up to the regional forum of WAEMU customs officials, held in Dakar on 1 and 2 December 2011, in which Mr Soumaré and Mr Diop had taken part and represented AIOD, Mr Soumaré, in his opening statement, had suggested that Customs Staff Regulations be brought into line with constitutional provisions on the right to organize. Subsequently, both principal customs inspectors were subjected to disciplinary measures (30-day suspension from work) for alleged “participation in a public meeting relating to trade union activities and taking a position that discredits institutions”. In accordance with section 8 of the Customs Staff Regulations, Mr Soumaré and Mr Diop do not have the right to strike, or to organize. Their freedom of expression, movement, assembly and association is, by decree, subject to the needs of the service. These are the grounds for the administrative measures taken by the authority in response to the complainants’ actions.
7. 510. In addition, the Government is of the view that the claim by Mr Soumaré and Mr Diop of a breach of their right to organize pursuant to Conventions Nos 87 and 98 is unfounded, since customs officials do not have the right to organize or to strike. The Government notes further that the disciplinary measures taken against the complainants are not meant to undermine the freedom of association or call into question the relevance of Conventions Nos 87 and 98. Rather, their aim is to penalize the clear violation by the complainants of the provisions of the Customs Staff Regulations. It is on this basis that the competent administrative authority imposed the relevant sanctions in order to enforce the law and implement the relevant disciplinary measures.
8. 511. With regard to compliance of the rulings of the Constitutional Court and the Supreme Court with ILO Convention No. 87 and the Universal Declaration of Human Rights, the Government recalls that the Constitutional Court, to which the Supreme Court had referred a case to examine the constitutional validity of section 8 of the Customs Staff Regulations, had concluded, in its ruling of 18 July 2013, that this provision was indeed in line with the Constitution. In its ruling of 12 December 2013, the Administrative Chamber of the Supreme Court also confirmed the constitutionality of this provision and the consistency of Customs Staff Regulations with Convention No. 87 and dismissed the complainant’s complaint on the merits.
9. 512. Contrary to the complainants’ allegations, the respective rulings of both the Constitutional Court and the Administrative Chamber of the Supreme Court had been based not solely on the reports of the Committee on Freedom of Association, but also on other legal instruments, namely the International Covenant on Economic, Social and Cultural Rights of 16 December 1966 and the Universal Declaration of Human Rights, reaching the conclusion that section 8 of the Customs Staff Regulations was not in breach of the Constitution.
10. 513. Lastly, with regard to the allegation that the 2012–13 report of the Ombudsperson is in breach of ILO Convention No. 87, the Government reaffirms the conclusions in the report: “that neither freedom of association nor the right to strike is absolute and that lawmakers may restrict or prohibit customs officials from exercising that freedom and right, including where there is an overriding need”. The Ombudsperson also noted that “customs staff, as a paramilitary corps, provide a public service which cannot tolerate deliberate interruption that endangers the functioning of the State. The general interest is thus able to justify the prohibition by the legislator of the right to strike and freedom of association to the customs personnel”. The Government emphasizes that while the Ombudsperson is an independent administrative authority, it is required to respect the institutions of the Republic, including its judicial institutions, as well as the laws governing the various administrative functions. Therefore, the Ombudsperson must respect the final rulings issued by national courts. In its report, the Ombudsperson is merely respecting the ruling issued by a higher court at first and last instance. This type of ruling applies erga omnes to all state entities and is equally binding on the Ombudsperson and the Supreme Court, which had referred the aspects of the case that raised issues of constitutionality while ruling on the issues raised therein. In conclusion, the position expressed by the Ombudsperson in its report should not be deemed to constitute interference in court proceedings.

C. The Committee’s conclusions

1. 514. The Committee notes that this case relates to allegations of denial of union rights of customs officials, and retaliatory measures taken against union leaders calling for a legislative amendment to that end. This case is submitted by the Independent Union of Tax and Domain Officers (SAID) and the Authentic Union of Customs Inspectors and Officers (AIOD), affiliated thereto.
2. 515. Firstly, the Government asserts that AIOD’s affiliation with SAID was not legally notified to the labour administration responsible for ensuring enforcement of national legislation governing union rights, and therefore has no legal basis since the Customs Staff Regulations expressly prohibit this category of civil servant, which has paramilitary status, from exercising the right to organize or to participate in union activities. The Committee recalls that, under the terms of the special procedures for the examination in the International Labour Organization (ILO) of complaints alleging violations of freedom of association (paragraph 32 of the procedures), the Committee has full freedom to decide whether an organization may be deemed to be an employers’ or workers’ organization within the meaning of the ILO Constitution, and it does not consider itself bound by any national definition of the term. In this case, the Committee is of the view that the denial of the customs officials’ union rights is clearly a matter that is relevant to an organization that represents this category of worker.
3. 516. The Committee notes that, according to the complainants, the provisions of section 8 of the Customs Staff Regulations are a breach of the provisions of ILO Convention No. 87, whereby workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization (Article 2); public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof (Article 3); 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 this Convention (Article 8). Section 8 of the Customs Staff Regulations states that “customs personnel of any grade level, whether in active service, on secondment, or on standby, are bound at all times by the following rules: They are not eligible; they do not have the right to strike or to organize; their freedom of expression, movement, assembly and association is, by decree, subject to the needs of the service”. This article thus runs counter to the provisions of Convention No. 87 by denying customs officials the freedom to exercise their right to organize (including the right to freedom of assembly and of expression). It also impedes the establishment of a federation of unions of the financial authorities in Senegal (including tax, treasury and customs officials) and of a regional federation of unions of customs officials in the West African Economic and Monetary Union (WAEMU). In support of its allegations, AIOD also notes that the provisions of sections 8 and 25 of Senegal’s Constitution guarantee fundamental freedoms, including freedom of association and the right to strike. The Committee takes note of the Government’s statement that, in Senegal, customs officials are part of the paramilitary, which ensures the State’s defence and security. Therefore, owing to the nature of their functions, they are governed by specific provisions, including crucial restrictions that are essential in light of the overriding need to ensure national security and the public good at all times. In 2013, the higher courts (the Constitutional Council and the Supreme Court) concluded that “neither freedom of association nor the right to strike is absolute”, and pursuant to section 25 of Senegal’s Constitution on this freedom and right, “it is the constituent’s understanding that there are restrictions on the freedom of assembly and the right to strike owing to the need to strike a balance between the defence of professional interests and the public good”.
4. 517. The Committee notes that the Government recalls a case previously examined by the Committee, in which it concluded that “officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike (part of the freedom of association) could thus be subject to restrictions, such as its suspension or even prohibition (Case No. 2383 (United Kingdom), 336th Report (2005)). According to the Government, the Supreme Court reviewed the issue of the compliance of section 8 of the Customs Staff Regulations with Senegal’s Constitution and concluded that this article did in fact comply with international standards governing the right to organize, especially since it had already been deemed to comply with the Constitution. In support of its ruling, the Supreme Court cited a case which had been reviewed by the Committee on Freedom of Association, in which the Committee had concluded that “the prohibition of the right to strike of customs officials, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association” (Case No. 1719 (Nicaragua), 304th Report (1996)). In the light of the foregoing, the higher courts (the Constitutional Court and the Supreme Court) concluded that neither freedom of association nor the right to strike is absolute and lawmakers may restrict or prohibit the exercise of this freedom and right, including in the event of an overriding need relating to defence, national security or the public good pursuant to section 8 of Act No. 69-64 of 30 October 1969 (the Customs Staff Regulations Act). The Constitutional Court, to which the Supreme Court had referred a case to examine the constitutional validity of section 8 of the Customs Staff Regulations, had concluded, in its ruling of 18 July 2013, that this provision was indeed in line with the Constitution. In its ruling of 12 December 2013, the Administrative Chamber of the Supreme Court also confirmed the constitutionality of this provision and the consistency of Customs Staff Regulations with Convention No. 87 and dismissed the complainant’s complaint on the merits.
5. 518. The Committee takes note of the complainants’ position that these rulings run counter to the Committee’s position and that the Constitutional Council and the Administrative Chamber of the Supreme Court misinterpreted the Committee’s conclusions. The complainant organizations maintain that on the contrary, the Committee has clearly established the principle that customs officials are covered by Convention No. 87 and therefore have the right to organize (Case No. 2288 (Niger), 333rd Report (2004)).
6. 519. The Committee recalls that, pursuant to Convention No. 87, workers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing. While Article 9 of the Convention does authorize exceptions to the scope of its provisions for the police and the armed forces, the Committee would recall that the members of the armed forces who can be excluded should be defined in a restrictive manner. [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 226.] Consequently, the Committee recalls the principle that customs officials are covered by Convention No. 87 and therefore have the right to organize [see Digest, op. cit., para. 233]. The Committee also clarified, during its examination of a case, that the functions exercised by employees of customs and excise, immigration, prisons and preventive services should not justify their exclusion from the right to organize (see Case No. 2432 (Nigeria), 343rd Report (2006)).
7. 520. The Committee nevertheless notes that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest, op. cit., para. 576]. The Committee recalls that it already formulated conclusions establishing that certain customs officials exercise authority in the name of the State. In such cases, the right may be restricted. During its examination of a case, the Committee also recalled that when the right to strike is restricted or prohibited, the workers should be afforded adequate protection so as to compensate for the restrictions imposed on their freedom of action in the event of disputes with their employers. Such restrictions to the right to strike should include appropriate, impartial and rapid conciliation and arbitration procedures, in accordance with the various steps in which those concerned should be able to participate, and in which the rulings should be implemented rapidly and completely (see Case No. 2288 (Niger), 333rd Report (2004)).
8. 521. While welcoming the interest in its conclusions and principles, the Committee notes that Constitutional Court ruling No. 2/C/2013 of 18 July 2013 and Supreme Court ruling No. 61 of 12 December 2013 seem to represent a broader interpretation of the Committee’s aforementioned position on customs officials’ right to organize.
9. 522. The Committee is of the view that section 8 of Act No. 69-64 of 30 October 1969 (the Customs Staff Regulations Act) is not consistent with the rights of all workers, including customs officials, to establish and join organizations of their own choosing. Consequently, the Committee proposes that the Government take the necessary steps to amend this provision in order to remove the prohibition of customs officials’ exercise of their trade union rights. Nevertheless, the Committee, recognizing the particular nature of the duties performed by this category of personnel, is of the view that the restriction on and prohibition of the right to strike (in accordance with section 8, at present) are not inconsistent with the principles of freedom of association per se but should include appropriate, impartial and rapid conciliation and arbitration procedures, in accordance with the various steps in which those concerned should be able to participate, and in which the rulings should be implemented rapidly and completely. Consequently, the Committee requests the Government to ensure that some form of compensatory guarantee is provided to customs workers in so far as their right to strike is restricted or denied and to keep the Committee informed of all such measures taken in that regard.
10. 523. The Committee takes note of the complainants’ allegation that the administrative measures taken against the two AIOD leaders, Mr Ndiaga Soumaré and Mr Pape Djigdjam Diop, reflect the authorities’ clear intention to penalize them for supporting the unionization of customs officials during the meeting of the committee on follow-up to the regional forum of WAEMU customs officials, held in December 2011. The Committee notes that in December 2011, the General Director of Customs notified Mr Soumaré and Mr Diop of disciplinary measures suspending them from work for 30 days for alleged “participation in a public meeting relating to trade union activities and taking a position that discredits institutions”. Subsequently, the aforementioned customs inspectors were dismissed from their posts as Heads of the Criminal Investigation and Narcotics Department (BICS) and of the Corporate and Private Sector Regulatory Department (BREP), respectively. Lastly, the Committee takes note of the allegations pertaining to discriminatory measures in respect of Mr Soumaré’s career advancement, including the claim that he was unassigned for 13 months and had to wait 11 months before he could be included in the list of promotions pertaining to colleagues in the same career progression track.
11. 524. The Committee notes that, according to the Government, the Customs Bureau decided to sanction Mr Soumaré and Mr Diop for alleged “participation in a public meeting relating to activities of a trade union nature, and taking of a position that discredits institutions” because they had suggested, during the meeting of the WAEMU committee on follow-up to the regional forum of customs officials, that the Customs Staff Regulations be brought into line with the Constitution’s provisions on trade union rights. The Government asserts that in accordance with section 8 of the Customs Staff Regulations, Mr Soumaré and Mr Diop do not enjoy freedom of expression, movement, assembly or association. Therefore, the administrative measures taken by the authority are justified by the complainants’ actions. In addition, the Government is of the view that Mr Soumaré and Mr Diop have no basis for invoking a breach of their trade union rights under ILO Conventions Nos 87 and 98 since their status as customs officials denies them the right to exercise freedom of association and the right to strike. Therefore, the disciplinary measures imposed on Mr Soumaré and Mr Diop sought not to violate their right to freedom of association, but rather to impose appropriate sanctions for a clear violation of the law, which they failed to respect.
12. 525. The Committee notes with concern that, according to information from the Government and the complainant organizations, Mr Soumaré and Mr Diop were subjected to disciplinary measures merely for advocating, within a representation mandate, recognition of their trade union rights. The Committee urges the Government to ensure that they are no longer penalized on these grounds and that the judicial appeals relating to the measures taken by the administrative authorities are treated taking these recommendations into account.