Definitive Report - Report No 147, 1975

78. These two cases were last examined by the Committee at its session in November 1973 when the Committee submitted interim conclusions which appear in paragraphs 437 to 467 (Case No. 698) and paragraphs 468 to 481 (Case No. 749) of its 139th Report. The 139th Report of the Committee was approved by the Governing Body at its 191st Session (November 1973). The Committee, at its session in February 1974, adjourned its examination of both cases as the observations of the Government had not been received.

1. 78. These two cases were last examined by the Committee at its session in November 1973 when the Committee submitted interim conclusions which appear in paragraphs 437 to 467 (Case No. 698) and paragraphs 468 to 481 (Case No. 749) of its 139th Report. The 139th Report of the Committee was approved by the Governing Body at its 191st Session (November 1973). The Committee, at its session in February 1974, adjourned its examination of both cases as the observations of the Government had not been received.
2. 79. The Government transmitted observations covering both cases in a communication dated 23 April 1974. This communication was received too late to enable the Committee to examine the cases in substance at its session in May 1974.
3. 80. Senegal has ratified both 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).

A. A. The complainants' allegations

1. 81. It will be recalled that during the debate which took place in the Governing Body at its 190th Session (May-June 1973), the Workers' members referred to information they had received according to which the leaders of the Union of Senegalese Teachers, Mr. Segal Fall, Mr. M'Baba Guisse and Mr. Babacar Sane, had been arrested on 27 March 1973. At the request of the Workers' members the Governing Body requested the Government to confirm the accuracy of this information, and in a communication dated 8 August 1973 the Government stated that these persons had been provisionally released on 24 July 1973 by the State Security Court, and that the Committee would be informed of the final decision of this Court as soon as it had been reached. Taking note of the Government's statement, the Committee, at its session in November 1973, requested the Government to keep it informed of all developments in the matter, it being understood that the Committee would submit a further report to the Governing Body as soon as it had received this information.
2. 82. As regards the other allegations made, and examined by the Committee, the only matter remaining outstanding also concerned the arrest of trade unionists who are members of the Union of Senegalese Teachers. The Government had, in its observations, stated that a number of teachers had been arrested for having manoeuvred and "acted in such a fashion as to endanger public security, occasion serious political disturbances and cast discredit on the political institutions of the State and the way in which they function, and for having acted in breach of national laws, i.e. committing offences punishable under section 80(2) of the Penal Code". These persons, continued the Government, had also stirred up serious political disturbances with the ultimate aim of overthrowing the legally established régime. In this connection, the Government was requested to indicate whether all these persons had been brought to trial and, if so, to specify the nature of the court which had heard the case and to forward the text of the judgment pronounced, together with the grounds adduced therefor.
3. 83. In its reply dated 23 April 1974 the Government states that, so far as the trial of the trade unionists is concerned, the special State Security Court dealt with the matter. This Court, explains the Government, has since 1961 had particular jurisdiction in crimes and offences having a political character. It is presided over by the President of the Court of Appeal. The rights of defence are strictly respected and the accused are able to engage any lawyer they choose. The Government supplies the name of the lawyer who defended the persons in question and transmits the texts of the judgments issued by the State Security Court.

B. B. The Committee's conclusions

1. 84. The Committee, when it last examined the allegations concerning the arrest of Mr. Segal Fall, Mr. M'Baba Guisse and Mr. Babacar Sane, emphasised that in cases of allegations relating to the prosecution and sentencing of trade union leaders, the question to be decided is the real reason for the measures complained of being taken, and only if these measures have been taken because of legitimate trade union activities can there be any infringement of freedom of association. In cases involving the arrest, detention or sentencing of a trade union official, the Committee, taking the view that individuals have the right to be presumed innocent until found guilty, has considered that it was incumbent upon the Government to show that the measures it had taken were in no way occasioned by the trade union activities of the individual concerned. (See 139th Report, paragraph 465.)
2. 85. As regards the arrest of the other trade unionists mentioned in the complaint, the Committee pointed out the importance it attaches to the principle that in all cases in which trade unionists have been detained, including those where they are accused of political or common law offences which the government considers to be unconnected with their trade union duties or activities, the persons concerned should receive a fair trial at the earliest possible moment by an impartial and independent judicial authority. Where the information received by the Committee has made it clear that the persons concerned were tried by the competent judicial authorities with all the safeguards of a normal judicial procedure, and sentenced for offences unconnected with their trade union activities or outside the scope of normal trade union activities, the Committee has considered that the cases in question did not call for further examination. Nevertheless, the Committee has insisted that the question as to whether the matter in respect of which sentences have been imposed is to be regarded as a matter relating to a criminal offence or as a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, but that it is incumbent upon the Committee to decide this in the light of all the information, and in particular in the light of the text of the judgment. (See paragraph 477, 139th Report.)
3. 86. The Committee notes from the judgments of the special Court of State Security that Messrs. Fall, Guisse and Sane, of the Union of Senegalese Teachers, were tried on 25 and 26 September 1973 and convicted of having committed acts of such a nature as to endanger public security or cause serious political disturbances, discrediting political institutions or their functioning, and acting in breach of the laws of the land, all these acts being punishable under article 60 of the Penal Code. From the text of the judgment, it would appear that their actions consisted in the drafting, publishing and distributing of pamphlets, the nature of which cast discredit upon the educational policy of the Government. The Committee notes that the distribution of these tracts gave support or encouragement to student demonstrations in or about March 1973. The Committee notes that a suspended sentence of six months' imprisonment was imposed on each of the trade unionists. From the second judgment supplied by the Government, the Committee observes' that five other members of the same union were tried for similar offences, and that similar sentences were passed on them.
4. 87. According to the aforementioned judgments, the pamphlets said to have been published and distributed by the trade unionists in question contained the following passages: "the Teachers' Trade Union of Senegal calls upon all militants to remain vigilant in order to thwart all the manoeuvres of the Government which, each time it finds itself facing the difficulties it has created for itself by its neo-colonialist, anti-social and anti-democratic policy, seeks to divert attention from the real problems and spreads false propaganda which tends to place the responsibility for the malaise on to democratic organisations, thereby restricting democratic and trade union freedoms". "The Senegalese Teachers' Union recalls that it is a trade union which struggles openly against the retrograde educational policy of the Government, fights for respect for trade union and democratic freedoms and for a national educational policy which is independent and democratic calls the attention of democratic forces and of the parents of children to the special responsibility which the Government has in the present school and university situation etc. ..."
5. 88. In connection with trade union publications, the Committee has previously taken the view that it is only in so far as trade union organisations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference with their activities. On the other hand, the Committee has pointed out that it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character. These two notions overlap, and it is inevitable, and sometimes usual, for trade union publications to take a stand on questions having political aspects as well as on strictly economic or social questions.
6. 89. In the present case, from the information at its disposal the Committee is of the opinion that the pamphlets in question contained passages which were mainly political in character and went beyond the scope of what can properly be defined as normal trade union activity. The publication and dissemination of the pamphlets were considered as constituting an offence, under article 80 of the Penal Code, for which the trade unionists in question were tried and convicted under normal judicial procedure. The accused trade unionists appear at all times to have enjoyed the benefit of a regular defence.