Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

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The Committee notes the observations received on 4 September 2023 from the Trade Union Congress of Swaziland (TUCOSWA), on 27 September 2023 from the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) and on 28 September 2023 from Education International (EI), all denouncing the deteriorating state of trade-union rights and the excessive violence of the police forces against gatherings and marches organized by trade unions, the harassment and death threats against union leaders, and the murder of Mr Thulani Maseko, a human rights and trade union rights defender. The Committee notes the Government’s reply to these observations, as well as to observations received in 2019 from TUCOSWA providing information on the report of the Committee of investigation set up to hear the cases and make recommendations. The matters raised in the above communications are addressed in this comment.

Civil liberties and trade union rights. Anti-union repression. The Committee notes with deep concern the serious allegations from the ITUC and ITF regarding the persecution and murders of trade unionists and the excessive violence against strikers that increased in 2022 and 2023, with allegedly more than 80 people reported to have lost their lives because of police crackdown on protests that demanded democracy and wage increases. In its reply, the Government refers to the situation in the country since June 2021 with an outbreak of violence, looting, attacks on public and private property and ruthless killings of public officers and civilians in a gross breach of public peace and security. According to the Government, these unprecedented riots, looting and violence could be associated with political insurgencies and should not be associated with the exercise of rights under the Convention. Investigations into these acts are still ongoing to identify and punish the perpetrators. The ITUC and ITF further allege that Mr Thulani Maseko, a human and trade union rights lawyer was brutally shot on 23 January 2023 at his home in Manzini. To date, no arrest in connection to this murder has been made. In its reply, the Government indicates that the death of Mr Maseko was a loss for the country at large, however political opportunists have saturated social media with stories about the motive and alleged perpetrators of this assassination. As regards the allegations that the police and security forces intervened violently during protest actions organized by the Swaziland Transport, Communication and Allied Workers’ Union (SWATCAWU) (October 2021 and November 2022) and during a march of public sector workers demanding a wage increase (October 2021) and causing serious casualties among workers, the Government states that the protest October 2021 was by no means peaceful. In the capital city of Mbabane, a large group of protesters was demanding regime change and causing structural damage, looting and burning tyres on the highway. The situation was out of control and the police had to mount several check points and roadblocks at strategic places. The police applied minimum force to disperse the protestors and restore order, warning shots were fired in the air and tear gas was discharged against the protestors who had turned violent towards the police. During the commotion, a person was shot and died on arrival at hospital. In November 2022, after a court ruling against five public transport workers charged with assault, a group of workers who had gone to protest around the court premises shifted to the surrounding areas burning tyres and looting shops. The police had to disperse the crowd in an effort to restore order. Finally, as regards allegations that the personal assets of leaders of the Amalgamated Trade Union of Swaziland (ATUSWA) were ravaged in April 2022, a week after a protest action in the textile and garment industry, the Government states that there were numerous burnings of homes and buildings belonging to political figures, influential people, police officers and targeted individuals. The police are still investigating the incidents. The Committee recalls that the rights of workers’ and employers’ organizations can only develop in a climate free of violence, threats and pressure, and that it is for the Government to guarantee that these rights can be exercised normally. It further recalls that Article 8 of the Convention provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land and that the law of the land shall not be such as to impair, nor shall it be so applied so as to impair, the guarantees provided for in this Convention. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. Where investigations have concluded abuse, the absence of convictions against those guilty of crimes against trade union officers and members creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. The Committee requests the Government to provide copies of the court decisions against the five public transport workers charged with assault, as well as information on the outcome of the police investigations mentioned above.

Harassment in the education sector. The Committee notes with deep concern the serious allegations from the ITUC, ITF, EI and TUCOSWA of violations of trade union rights in the education sector, in particular against the Swaziland National Association of Teachers (SNAT): (i) serious acts of anti-union discrimination against and harassment of Mr Mbongwa Dlamini, President of SNAT, since his election at the head of the teachers’ union. Through the Teaching Service Commission (TSC), the authorities harassed Mr Dlamini with misconduct charges, leading to decisions of suspension of pay and transfer. Despite a decision of the Industrial Court dated May 2023 in favour of Mr Dlamini, who has not been paid since September 2022, the authorities have still failed to pay him and have appealed the court decision. Mr Dlamini has now been dismissed from his duties by the Teaching Service Commission as he was expected to go to work without being remunerated. EI denounces the dismissal of the President of SNAT for merely bearing his mandate as representing teachers; (ii) in February 2023, Mr Dlamini went into hiding after receiving multiple death threats while he was outside of Eswatini. This decision was made after the assassination of the human rights lawyer, Thulani Maseko. The SNAT executive determined that it was necessary for the union President to relocate to a safe place outside the country; (iii) the TSC is now allegedly threatening the Secretary General of SNAT, Mr Lot Mduduzi Vilakati, for defending the President and SNAT members; (iv) the authorities refused in 2023 to implement the 3 per cent increase in dues for SNAT members and also refused to include new members recruited by SNAT. According to EI, this is a move by the Government to reduce the membership of SNAT to less than 50 per cent so that they can deregister the union. New members are not put in the system and members are removed from the system by the Government without the members’ knowledge; (v) the Government continues to initiate and encourage union-bashing as seen in the Government sponsored splinter groups, casualization of teachers, print and electronic media threats against SNAT, suspension of union officials, implementation of the “no work no pay” policy, use of threats, spying, and vilification of SNAT leaders and members. The consequences of the Government’s deliberate actions to weaken SNAT, lead to increased intimidation, a decrease in SNAT membership, an increase in conflicts and grievances in schools, incapacitated leadership leading to a fear of assuming union positions, and low turnout in union activities; (vi) violent repression by the police against protests and a march organized by SNAT between 2018 and 2019; (vii) EI is alarmed by the threats made against SNAT and its members, including the declaration of SNAT as a terrorist entity by people holding high positions in Eswatini; and (viii) Ms Xolile Mnisi Sacolo, Chairperson of the Limkokwing Branch of the National Workers Union of Higher Institutions (NAWUSHI), appealed against a predetermined disciplinary action targeting her as a union official was wrongfully dismissed by a court decision in August 2023 on claims that she was causing delays.

In its reply, the Government denies the allegations that Mr Mbongwa Dlamini, President of SNAT, was forced into exile following threats by security forces and asserts that he is actively participating and engaging in union activities. Furthermore, the Government states that there is no criminal matter pending against Mr Dlamini, nor is there an arrest warrant issued or pending. Additionally, the judicial appeal against the Industrial Court decision of May 2023 in favour of Mr Dlamini is still pending before the High Court. Regarding its alleged attempt to stop collection and remittance of the union dues, the Government declares the allegations as fallacy and untrue. The Government and SNAT have a clear and standing Recognition Agreement that dates back many years, which it fully respects.

With regard to the allegations of threats against the leadership of SNAT, the Committee firmly recalls that acts of intimidation and physical violence against trade unionists constitute a grave violation of freedom of association and the failure to protect against such acts amounts to de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights. The Committee urges the Government to provide its comments to the remaining allegations, to indicate any measures taken to enable SNAT to develop its activities in the education sector without threats against its leadership or interference, on the present status of Mr Mbongwa Dlamini who was allegedly harassed and threatened because of his union mandate, and on the outcome of the judicial appeal against the decision of May 2023 of the Industrial Court in favour of Mr Dlamini and any follow-up to it.

Article 3 of the Convention. Ban on trade union gatherings by administrative order. The Committee notes with concern the allegation from all of the above-mentioned trade unions that the rights of the freedom of assembly of workers’ organizations is considerably restricted as the laws regulating gatherings are suspended by an administrative order of October 2021 of the Ministry of Housing and Urban Development, which extended the ban on demonstrations, marches and petition deliveries in all urban areas and towns. The said ministerial order revoked the powers of Municipal Councils to entertain gathering notices. The situation is akin to an undeclared state of emergency as the police can only allow up to three people to march. Despite a court ruling lifting the ban in February 2022, the Government allegedly continues to prohibit and cracks down on gatherings and protests. This matter remained unresolved at the mediation. In the midst of a voluntary conciliation meeting to resolve the issue in July 2023, the Government issued a public announcement, purporting a relaxation of the ban, thereby allowing the Municipal Councils, as of 18 July 2023, to issue permits for gatherings not exceeding ten people. TUCOSWA recalled however that the Public Order Act, 2017, permits the gathering of not more than 50 people without notice requirements. The trade unions regretted that trade union gatherings remain banned in Eswatini.

In this regard, the Committee recalls that trade unions should be able to hold meetings, in accordance with the principle embodied in Article 3 of the Convention, whereby organizations have the right to freely organize their activities without interference from the authorities. The authorities should refrain from any interference which would restrict freedom of assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see the 2012 General Survey on the fundamental Conventions, paragraph 115). The Committee also considers that trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places. Consequently, the Committee urges the Government to take all necessary measures to ensure in law and in practice that representative organizations fully enjoy the right to hold public meetings enshrined in the Convention, and therefore to repeal any text whose application would considerably limit the possibilities of representative organizations to hold large-scale public meetings to defend the occupational interests of their members.

Police violence against industrial actions. Findings of the Investigation Committee. The Committee previously requested the Government to provide information on the outcomes of the examination by the Independent Investigation Committee of the complaints made in September 2018 and September 2019 by TUCOSWA and the ITUC on the alleged violence against peaceful industrial actions. The Committee notes that the Investigation Committee recommended, inter alia, the following: (i) training of lower ranked police officers, the union leadership and Marshalls, and the public at large in trade union rights and the handling of industrial actions; (ii) both police and union leadership should commit to upholding the law during industrial actions and develop a culture of cooperation; (iii) video recording of industrial actions should be considered for review purpose; and (iv) an independent monitor (individual or organization) should be involved in the preparation during the industrial action.

The Committee notes that in parallel to this investigation process, the Government and TUCOSWA negotiated and agreed in May 2023 to resort to a national voluntary conciliation on matters giving rise to a complaint lodged before the Committee on Freedom of Association (Case No. 3425 presented by TUCOSWA in March 2022), and those addressed in this comment. The Committee observes, from the report of the conciliation issued in September 2023, that the parties agreed to avail themselves of the technical assistance of the Office regarding the regulatory and practical issues concerning the handling of industrial action and public gatherings organized by trade unions.

The Committee recalls that allegations of police violence while handling trade union demonstrations have been recurrent in the past years and that the Government has benefited from the technical assistance of the Office for the adoption and the dissemination of the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017, as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country, in order to minimize unwarranted confrontations between protestors and members of the law enforcement agencies and Municipal Councils. In its 2019 report, the Government reported plans for the sensitization of members of Parliament, Cabinet Ministers and executive leaders of trade unions in this regard. The Committee acknowledges the tangible measures taken by the Government in 2022 and 2023 to investigate the matters previously raised by the unions and to seek corrective measures. Taking note of the recommendations of both the Investigation Committee and the national voluntary conciliation, the Committee expects that the Government will take measures without delay and in consultation with the social partners for the dissemination of codes of good practices so that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice. The Committee hopes that the Government will avail itself of the technical assistance of the Office in this regard. The Committee requests the Government to report fully on progress made in this regard and once again requests that the Government also provides information, where appropriate, on violations identified and penalties imposed pursuant to section 49(1) of the Police Service Act, No.22 of 2018 (disciplinary action against abuse of power by members of the police).

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

[The Government is asked to reply in full to the present comments in 2025.]