Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the communication dated 24 August 2010 submitted by Education International (EI), as well as the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) in 2008. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association of June 2010, as regards allegations of serious violations of trade union rights and interference in the internal organization of the Ethiopian Teachers’ Association (Case No. 2516).

The Committee notes that the Government indicates, in its reply, that it categorically rejects the allegations of interference in the affairs of independent associations and states that, without the free and unfettered operation of independent associations, the democratization effort in the country will not succeed. The Government’s report adds that it has repeatedly explained that the right to form associations was a constitutionally protected freedom that citizens freely exercise, that the 2006 Labour Proclamation upholds this fundamental constitutional right and guarantees to trade unions the right to engage in organized collective bargaining within the scope delineated by its provisions; that the numerous freely functioning trade union and professional associations attest to the fact that the national legislation is in compliance with the Convention; and that the labour law provides unions and associations with a “legal arsenal” to defend themselves against any form of undue intervention. The Committee also notes that the Government indicates that the allegation that the new Charities and Societies Proclamation No. 621/2009 limits the right to strike and collective bargaining is completely without legal or practical foundation; that the conditions for the exercise of the right to strike and collective bargaining are governed by the Labour Proclamation; that unions can pursue their objective through this available option; and that the law provides for a list of essential public services to be maintained during a strike and holds the guilty party accountable in the event that property damage occurs in the course of the exercise of such activities.

Teachers’ associations. In its previous comments, the Committee, also referring to the conclusions of the Conference Committee in 2009, had urged the Government to take without delay the necessary measures to ensure the resolution of the registration of the National Association of Ethiopian Teachers (NTA). The Committee notes that the Government indicates in its report that the NTA can request registration from the newly formed Charities and Societies Agency (CSA), established on the basis of the newly published Charities and Societies Proclamation No. 621/2009, and that, if registration is refused by the CSA, the NTA can bring the issue before a court of law, which could establish that the organization was unfairly denied registration. The Committee also notes that the Government’s report indicates that, at this stage, before the issues have found legal closure, it is not appropriate for the Government to get involved in this regard, but that, once the NTA is registered, the Government reiterates its assurance that, as required by law, the NTA will enjoy all the entitlements of recognition and services that all legal associations are entitled to receive.

The Committee notes that the EI indicates, in its communication, that, after an unsuccessful attempt by the NTA to be registered with the Ministry of Justice in December 2008, the second attempt to register, in February 2010, has consistently been discouraged verbally by officials of the newly created CSA. According to the EI, three officers of the CSA commented that some of the objectives of the NTA, specifically the task to promote quality education and implementing Education for All and HIV/AIDS prevention programmes, are the sole responsibility and duty of the Government and warned that a union had to stick to only defending the rights of its members. Moreover, the officers of the CSA allegedly instructed the NTA representatives to convince teachers to join the existing teachers’ association. On 7 May 2010, the NTA representatives requested the Director-General of the CSA to take the following actions: (i) either order the concerned officers to register NTA and issue certificate without further delay, or inform the NTA in writing of the refusal to register, in accordance with article 3.3; and (ii) provide the NTA with the address of the Charities and Societies Board since no one at the CSA could tell NTA the address of the Board, in order for NTA to be able to appeal grievance. As of 20 August 2010, no official response was notified to NTA representatives. Deeply regretting the time that has elapsed since the NTA first sought registration and recalling that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, the Committee urges the Government to take all necessary measures to ensure that the NTA is registered without further delay so that teachers may fully exercise their right to form organizations for the furthering and defence of teachers’ occupational interests, and to provide information on the progress made in this respect in its next report.

As to the Charities and Societies Proclamation No. 621/2009, which was published on 13 February 2009, the Committee notes that the Government indicates in its report that the law was promulgated after extensive public discussions involving all stakeholders, and entered into force after the expiry of the period of time which was given to associations and various charities and societies to align themselves with its requirements. The Government’s report adds: that the Charities and Societies Proclamation aims at enhancing the participation of civil society organizations in developmental efforts of the country; that it clearly defines and regulates charities and societies and provides the necessary safeguards and due process in the framework of democratization efforts; and that no trade union or related association raised complaints on being aggrieved or restrained by this new law. The Committee notes that, according to its preamble, the Charities and Societies Proclamation is based on the need to “enact a law in order to ensure the realization of citizens’ right to association enshrined in the Constitution” and that the abovementioned CSA is the newly established state agency for the registration of associations. Nevertheless, the Committee notes with concern that the Charities and Societies Proclamation organizes an ongoing and close monitoring of the organizations established on its basis and gives governmental authorities great discretionary powers to interfere in the registration, internal administration and dissolution of the concerned organizations with respect to those falling within its scope, which appear to encompass civil servants, including teachers.

The Committee notes that a number of provisions of the Charities and Societies Proclamation raise issues of compatibility with the Convention:

–      the Charities and Societies Proclamation establishes a distinction between the organizations which are required to register, on the basis of the nationality of their members and the amount of funds they receive from foreign sources (article 2(2) and (3)); and, pursuant to article 14(5), only “Ethiopian Charities and Societies” – that is organizations all of whose members are Ethiopians, generate income from Ethiopia, are wholly controlled by Ethiopians and receive not more than 10 per cent of their funds from foreign sources – can take part in activities linked with the advancement of human and democratic rights, the promotion of the rights of the disabled and children’s rights, the promotion of conflict resolution or reconciliation and the promotion of the efficiency of the justice and law enforcement services. The Committee understands that workers’ and employers’ organizations the members of which “reside” in the country – who are not all nationals – that are receiving more than 10 per cent of their funds from foreign sources and whose purpose is to defend the social and economic rights and interests of their members would not be permissible under the Act and would not be able to carry out their activities in the defence of the interests of their members;

–      the Charities and Societies Proclamation authorizes the CSA to interfere in a range of administrative, financial and accounting issues concerning the internal functioning of the organizations, either explicitly or by using general wording that leaves a great margin of appreciation to the supervisory body through, inter alia, the following provisions: (i) pursuant to article 84(1) and (2), the CSA may “from time to time” institute inquiries with regard to charities or societies, either generally or for particular purposes and for the purposes of any such inquiry, the CSA “may by order” require the organization to furnish accounts and statements in writing, with respect to any matter in question at the inquiry, to furnish copies of documents in his custody or under his control, or to attend at a specified time and place and give evidence or produce documents; (ii) pursuant to article 85(1)(a), the CSA may, by order, require any charity or society or an employee thereof to furnish orally or in writing any information in her/his possession which relates to any charity or society; (iii) pursuant to article 86, any society shall notify the CSA in writing of the time and place of any meeting of its General Assembly, not later than seven working days prior to such meeting; (iv) pursuant to article 88(1), any organization shall allocate not less than 70 per cent of the expenses in the budget year for the implementation of its purposes and an amount not exceeding 30 per cent for its administrative activities; (v) pursuant to article 90, where, “at any time”, the CSA, upon an inquiry with respect to any organization, “is satisfied that there is or has been any misconduct or mismanagement” in the administration of the organization and that it is “necessary to act for the purpose of protecting the property” of the organization, the CSA may, inter alia, suspend the officer responsible for the misconduct or mismanagement; and (vi) an organization may not establish a branch, change its name, place of work or amend its rules without giving prior notice to the CSA (articles 72–73) and shall not use any symbol without having it previously registered by the CSA (article 74);

The Committee recalls that the right of workers and employers to establish organizations of their own choosing, without interference by the public authorities includes the right to freely decide on the structure and composition of the organization, as well as autonomy and financial independence; that legislative provisions regulating in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by public authorities; that such provisions should simply establish an overall framework in which the greatest possible autonomy is left to the organizations; that there is no infringement of these rights if, for example, the supervision is limited to the obligation of submitting periodic financial reports; that problems of compatibility with the Convention arise when the law requires that certain financial operations – such as the receipt of funds from abroad – be approved by the public authorities as well as when the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time; and that both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (General Survey of 1994 on freedom of association and collective bargaining, paragraphs 78, 107, 124–126 and 135).

–      as regards the dissolution of organizations, pursuant to article 92(2)(e) of the Charities and Societies Proclamation, the licence of any organization shall be cancelled, inter alia, “where it commits a crime by violating the provisions of the criminal code or that of the Proclamation”; noting that, pursuant to article 93, an organization may be dissolved by the CSA when its licence has been cancelled, it would thus appear that any violation, by an organization, of any provision of the Proclamation, including minor administrative requirements, may lead to the cancellation of its licence and to its dissolution;

–      no suspensive effect is provided to the appeal procedure, since, pursuant to article 104(4), any organization in an appeal process, “in relation to registration or cancellation, shall be deemed not registered or cancelled until the final decision is made by the concerned authority”.

The Committee recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations, and should therefore be accompanied by all the necessary guarantees; that the organizations affected by such measures must have the right of appeal to an independent and impartial judicial body; and that the administrative decision should not take effect until a final decision is handed down (General Survey, op. cit., paragraphs 185 and 188).

–      as regards the registration process, the Charities and Societies Proclamation makes the acquisition of legal personality a prerequisite for the existence of an organization (articles 56(1) and 64(2)); moreover, the obligation to register with the CSA also applies to organizations that had already been registered before the publication of the Proclamation (article 111); in addition, the licence of the organization has to be renewed every three years (article 76(1)); and the wording used by article 69(2) would appear to allow the CSA to refuse to register an organization on a discretionary basis, since, according to this provision, the CSA shall refuse to register a charity or society where the proposed organization “is likely to be used for unlawful purposes or for purposes prejudicial to public peace, welfare or good order”.

The Committee recalls that when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of an organization, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (General Survey, op. cit., paragraph 76);

–      as to the sanctions and penalties, noting that the Charities and Societies Proclamation requires the organizations to fulfil a large number of requirements – ranging from minor administrative demands to structural clauses and detailed accounting – the Committee understands that any failure to adhere to any of these provisions may constitute a criminal offence, since, pursuant to article 102(1), “any person who violates the provisions of the Proclamation shall be punishable in accordance with the provisions of the Criminal Code”; in addition to prison terms, heavy fines can also apply when any organization fails, inter alia, to keep its books of accounts, to record money received, its source and the amount expended, or fails to submit an annual statement of account, or fails to allocate not less than 70 per cent of its expenses for the implementation of its purposes and not exceeding 30 per cent for its administrative activities (article 102(2)); in addition, any employee who participates in the “criminal acts” established under article 102(2) shall, “without prejudice to the applicability of the relevant provisions of the Criminal Code prescribing a penalty of imprisonment”, be punishable with a fine (article 102(3)).

In these circumstances, taking into account the broad discretionary powers provided by the Charities and Societies Proclamation No. 621/2009 to public authorities, in particular through the establishment of the CSA, to interfere in the right to organize of workers and employers, as well as the requirement in the Proclamation that the funds of an association received from foreign sources not exceed 10 per cent, contrary to the right of workers’ organizations to organize their administration, the Committee urges the Government to take the necessary measures, without delay, to ensure that the Charities and Societies Proclamation is not applicable to the workers’ and employer’s organizations covered by the Convention and that such organizations are ensured effective recognition through legislation which is in full conformity with the Convention. The Committee requests the Government to provide information on all the steps taken in this regard and reminds the Government that it may avail itself of the technical assistance of the ILO in this respect.

Civil servants. Furthermore, in its previous observation, the Committee had recalled that it had requested the Government to take measures to amend the Civil Servant Proclamation, so as to ensure the right of civil servants, including teachers in public schools, to form and join trade unions. The Committee had noted that the Government indicated that this right is enshrined under article 42 of the Constitution and that government employees whose work compatibility allows for it and who are below a certain level of responsibility have the right to form associations to improve their conditions of employment and economic well-being. The Committee had also noted that the Government had expressed to all relevant bodies that it shall achieve full compliance gradually by preparing the necessary conditions and the capacity of the country to shoulder the full extent of this right.

The Committee notes that the Government indicates, in its report, that it is important to re-emphasize the fundamental fact that the Constitution explicitly provides that every person, including every civil servant, has the right to form associations for any cause or purpose; that civil servants with grievances in respect of their conditions of work are entitled to resort to legal mechanisms of redress under the legislation governing the civil service and other legal recourses, including the Office of the Ombudsperson; that it reiterates its position that there was not, nor could there be, any difference on whether civil servants should be able to form associations; and that the only difference is the timing. The Government’s report indicates that it is the Government’s assessment that the country is not ready to fully cater for such a framework; that this is the only explanation why the civil service legislation did not yet provide a separate association in the civil service; that as part of the democratization process in the country, the Government is fully engaged in implementing the civil service reform programme designed to provide efficient and speedy service to citizens; that at the present juncture, the Government has not developed the capacity to engage in a fully fledged collective bargaining process with civil servants; and that this is a matter to be presented for consideration by the legislature once the reform programme is successfully implemented and the necessary national capacity is in place. The Committee recalls the importance of ensuring that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee requests the Government to take the necessary measures to ensure that the freedom of association rights of civil servants, including teachers in the public sector, are fully guaranteed, and to provide information on the progress made in this respect in its next report.

Furthermore, in its previous comments, the Committee had urged the Government to conduct a full and independent inquiry without delay into the allegations made by the ITUC and EI, relating to arrests of trade unionists, their torture and mistreatment while in detention, and continuing intimidation and interference. The Committee had noted the Government’s statement that all allegations that are presented with credible evidence will be fully investigated by constitutional bodies including the courts, the Ethiopian Human Rights Commission, the Office of the Ombudsperson, or by a mechanism approved by the House of Peoples’ Representatives. The Committee notes that the Government further indicates in its report that, on 8 May 2009, the second Criminal Bench of the Federal High Court found Mr Meqcha Mengistu guilty and sentenced him to three years’ imprisonment; that he was released after receiving a pardon and that Ms Wubit Ligamo, who the Government denies was mistreated while in prison, was also released. While welcoming these releases, the Committee deeply regrets that the Government has never provided any information on the investigations expected into the allegations of torture and maltreatment of the detained trade unionists.

Labour Proclamation (2003). Finally, the Committee recalls that for several years it has been expressing its concern over the Labour Proclamation (2003), which falls short of ensuring full application of the Convention. In particular, the Committee recalls that it had previously requested the Government:

–      to ensure the right to organize of the following categories of workers who are excluded, by section 3, from the scope of application of the Labour Proclamation: workers whose employment relations arise out of a contract concluded for the purpose of upbringing, treatment, care, rehabilitation, education, training (other than apprenticeship); workers under contract of personal service for non-profit-making purposes; managerial employees, as well as employees of state administration; judges and prosecutors, who were governed by special laws;

–      to delete air transport and urban bus services from the list of essential services in which strike action is prohibited (section 136(2));

–      to amend its legislation so as to ensure that, except in situations concerning essential services in the strict sense of the term, acute national crisis and public servants exercising authority in the name of the State, recourse to compulsory arbitration is allowed only upon the request of both parties;

–      to amend section 158(3), according to which the strike vote should be taken by the majority of the workers concerned in a meeting in which at least two‑thirds of the members of the trade union were present, so as to lower the quorum required for a strike ballot; and

–      to ensure that the provisions of the Labour Proclamation which, as noted above, restrict the right of workers to organize their activities, are not invoked to cancel an organization’s registration pursuant to section 120(c) until they have been brought into conformity with the provisions of the Convention.

The Committee requests the Government to take the necessary measures, without delay, to bring the legislation and practice into full conformity with the Convention, and to provide detailed information in its next report on the progress made thereon, as well as on the time frame for such action.