Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Abolition of Forced Labour Convention, 1957 (No. 105) - Zimbabwe (Ratification: 1998)

Other comments on C105

Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2021.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the detailed discussion, which took place at the 109th Session of the Conference Committee on the Application of Standards in June 2021, concerning the application by Zimbabwe of the Convention.

The Conference Committee deplored the continued use of penal sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political or social system. It urged the Government to ensure that no penalties involving forced labour may be imposed so as to be in compliance with Articles 1(a) and 1(d) of the Convention; and to repeal or amend sections 31, 33, 37 and 41 of the Criminal Law (Codification and Reform) Act No 23/2004 (Cap. 9:23) (Criminal Law Code), sections 7(5) and 8(11) of the Maintenance of Peace and Order Act No. 9 of 2019 (MOPA), and sections 102(b), 104(2)–(3), 109(1)–(2), and 112(1) of the Labour Act in order to bring them into conformity with the Convention in consultation with the social partners without delay. The Committee urged the Government to avail itself of technical assistance and to report to the Committee of Experts, prior to its 2021 session.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. In its earlier comments, the Committee noted that penalties of imprisonment (involving compulsory prison labour by virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations 1996) may be imposed under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, namely:

-sections 31 and 33 of the Criminal Law (Codification and Reform) Act (Cap. 9:23) (Criminal Law Code) concerning publishing or communicating false statements prejudicial to the State; undermining authority of or insulting the President etc.; and
-sections 37 and 41 of the Criminal Law Code under which sanctions of imprisonment may be imposed, inter alia, for participating in meetings or gatherings with the intention of disturbing the peace, security or order of the public, uttering any words or distributing or displaying any writing, sign or other visible representation that is threatening, abusive or insulting, intending thereby to provoke a breach of peace; and engaging in disorderly conduct in public places with similar intention;
-sections 7(5) and 8(11) of the MOPA, which provide for sanctions of imprisonment for failure to give notice of processions, public demonstrations and public meetings; and failure to comply with a prohibition notice or any directions or conditions under which a procession, public demonstration or public meeting is authorized.

The Committee noted the ZCTU’s observation that the MOPA, which repealed the Public Order Security Act (POSA), was more draconian than the POSA. It also noted the statement made by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, in 2019 that the MOPA has worrying similarities to the POSA and that it does not fully guarantee the exercise of the right to peaceful assembly. It continues to give law enforcement agencies broad regulatory discretion and powers.

The Committee notes the Government’s statement in its written information provided to the Conference Committee that the twenty ZCTU members who were arrested under section 37 of the Criminal Law for having participated in a ZCTU organized protest action in October 2018, which the Committee noted in its previous comments, were acquitted by the court on 12 November 2020. It also notes the reference made by the Government representative, during the Conference Committee discussion, to section 9 of the MOPA which explicitly exempts certain gatherings and meetings from the requirements stipulated under sections 7 and 8, including meetings convened by registered unions for bona fide trade union purposes for the conduct of business, in accordance with the Labour Act [Chapter 28:01]; and public gatherings for bona fide religious or educational purposes, or those held by members of professional, vocational or occupational bodies for non-political purposes.

The Committee, however, notes that, in its observations, the ITUC reiterates that workers in Zimbabwe still face penal sanctions involving compulsory labour as a punishment for expressing views opposed to the established political, social or economic system. It states that the criminal provisions, together with their prison terms and compulsory prison labour, are used to drag trade union leaders and workers seeking to exercise their civil liberties and fundamental rights through the criminal justice system. The ITUC points out that while the failure to notify the authorities of the intention of holding a public gathering and violations of the prohibition of public gatherings or public demonstration are punishable with imprisonment of up to six months under the POSA, similar offences under sections 7(5) and 8(11) of the MOPA are punishable with one year imprisonment. The ITUC recalls that compulsory labour is by virtue of the Prisons Act and that section 76(1) of the Prisons Act and section 66(1) of the Prisons Regulations make compulsory prison labour, in practice, the norm for all prisoners. In this regard, the ITUC refers to the arrests of two ZCTU leaders in 2019 following a protest action, who were convicted and sentenced to imprisonment for a period of twenty years, as well as the arrest in December 2020 of an officer of the Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) who was convicted, under section 37 of the Criminal Code, after a trade union protest action against the erosion of teachers’ salaries by the Government. She was jailed for 16 months and underwent compulsory prison labour.

The Committee notes the Government’s information in its report that the prison system in Zimbabwe went through a transformation focusing on rehabilitation of offenders for integration into society and that the use of labour in prisons has been outlawed. In order to give effect to this transformation and to bring it into conformity with the Convention, the Prisons Act is currently being amended. The Government also states that pending the promulgation of this amendment, Prison Officers have been given policy directives to discontinue administering labour in prisons. Hence, the provisions of the MOPA and the Criminal Law Code, in question, are no longer applied in practice. The Committee further notes a copy of the ILO Roadmap on Strengthening International Labour Standards observance and Social Dialogue in Zimbabwe provided by the Government, which indicates the Government’s readiness to engage in tripartite dialogue to address some of the existing challenges, including to unpack the MOPA and to facilitate a direct contacts mission to discuss issues of forced labour raised by the Conference Committee.

In addition, the Committee notes that the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, in his report of May 2020, on his visit to Zimbabwe, acknowledged restrictions against those representing dissenting voices and expressed concern about the application of section 22 (subverting constitutional Government) of the Criminal Law Code to prosecute human rights defenders, and civil society and opposition leaders suspected of having played important roles in protests, which could lead to imprisonment for up to 20 years (A/HRC/44/50/Add.2, paragraphs 63 and 64).

While taking due note of certain measures taken by the Government to address the issues related to compulsory prison labour, the Committee expresses its concern that the practice of arrests, prosecutions and convictions involving the imprisonment of persons exercising their right to peaceful assembly still continues and that the legal basis for imposing labour on a person sentenced to imprisonment still exists. In this respect the Committee recalls that Article 1(a) of the Convention prohibits the imposition of any form of compulsory labour, including compulsory prison labour, as a punishment for expressing political views or views opposed to the established political, social or economic system. Accordingly, in light of the proposed amendments to the Prisons Act prohibiting compulsory prison labour, the Committee strongly urges the Government to take the necessary measures to review sections 31, 33, 37 and 41 of the Criminal Law Code and sections 7(5) and 8(11) of the MOPA, so as to ensure that, both in law and in practice, no penalties involving compulsory labour shall be imposed on any person in relation to their holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee requests the Government to provide information on any progress made in this regard as well as with regard to the amendments made to the Prisons Act. Pending the adoption of such measures, the Committee requests the Government to provide information on the application of the abovementioned provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

Article 1(d). Penal sanctions involving compulsory labour as a punishment for having participated in strikes. In its earlier comments, the Committee noted certain provisions of the Labour Act (sections 102(b), 104(2)–(3), 109(1)–(2), and 122(1)) that establish sanctions of imprisonment, which involves compulsory prison labour, for persons engaged in an unlawful collective action. The Committee noted the Government’s indication that these sections of the Labour Act were included in the draft Principles for the Harmonization and Review of Labour Laws in Zimbabwe. Noting an absence of information in the Government’s report and the lack of progress in the labour law reform, the Committee strongly urged the Government to ensure that the above-mentioned sections of the Labour Act are amended in conformity with Article 1(d) of the Convention so that no sanctions of imprisonment may be imposed for organizing or peacefully participating in strikes.

The Committee notes from the Government’s written information to the Conference Committee that the Labour Amendment Bill which repeals sections 102(b), 104(2)–(3), 109(1)–(2) and 122 of the Labour Act, is in the process of being adopted. According to the Government’s report the Bill has been approved by the Cabinet Committee on 28 September, 2021 and is now pending in Parliament. The Government indicates that the Labour Amendment Bill is a product of extensive consultations with social partners and relevant stakeholders to bring the Labour Act into conformity with the comments made by the ILO supervisory bodies. The Committee expresses the firm hope that the Labour Amendment Bill, which repeals sections 102(b), 104(2)–(3), 109(1)–(2) and 122 of the Labour Act, will be adopted in the near future. It requests the Government to provide information on the progress made in this regard as well as to provide a copy, once it has been adopted.

The Committee encourages the Government to continue to avail itself of ILO technical assistance in its efforts to bring its law and practice into compliance with the provisions of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.