Informe definitivo - Informe núm. 284, Noviembre 1992

1. 418. The Committee has already examined the substance of this case on four previous occasions, each time presenting interim conclusions to the Governing Body, the most recent of which were approved in March 1992 (see 281st Report, paras. 295-310).
2. 419. The Government supplied certain further information on this case in a communication dated 9 April 1992.
3. 420. Sudan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 421. This case involves serious allegations concerning measures taken by the military authorities after the military coup of 30 June 1989. The complainants originally raised the following infringements of freedom of association: dissolution by military decree of all trade union organisations in the country; imprisonment of a great number of trade union leaders and activists apparently without charges and without trial; confiscation of union assets and property by the military; dismissal and surveillance of named union leaders; and heavy sentences imposed by military tribunals - including the death sentence - on two named trade union leaders. More recent allegations related to the death under torture of a named trade union leader, the continuing detention of several union leaders in extremely poor conditions and the kidnapping and disappearance of another trade union leader.
2. 422. In its replies, the Government announced: the lifting of the sentences imposed on the named union leaders; the release of all detained unionists; the return, by virtue of Decree No. 10 of 1989, of all trade union property; and the resumption of activities of newly formed worker and employer organisations. To the most recent allegation of death under torture, the Government replied that the legal anatomist found that it had been a normal death; it also responded that the trade union leader allegedly kidnapped had been charged, tried and found guilty of participation in a coup d'état and was held in prison in good health, and that certain other persons allegedly detained were not, in fact, unionists.
3. 423. At its March 1992 Session, the Governing Body, in the light of the Committee's conclusions, approved the following interim recommendations:
   • (a) The Committee notes that the autopsy report into the alleged death under torture of Dr. Ali Fadul is required by the judicial authorities in connection with proceedings brought in this respect and accordingly asks the Government to procure it a copy of the report as soon as it is available; in the meantime it asks for information on the proceedings instituted by the family in so far as they may throw light on the suspect circumstances of his demise while in custody.
   • (b) The Committee once again requests the complainant organisations to supply further information on Messrs. Al Hag Osman, Mannalla Abdalla and Mohamed Faig, who are allegedly detained.
   • (c) Given the text of Decree No. 10 of 1989, the Committee requests the Government to take the necessary steps to allow workers and employers freely to establish and join unions and organisations of their own choosing.
   • (d) It also requests the Government to ensure that the assets of the former bodies are returned to those organisations which can resume their activities or which succeed them and pursue the same aims in the same spirit. To this end the 1989 military decrees, in particular Decree No. 10, should be repealed. It asks the Government to inform it of any progress made in this matter.
   • (e) The Committee trusts that the Government will keep it informed of developments in the adoption of the draft trade union law currently being reviewed by a tripartite committee and again suggests that any final text be submitted to the Office for its comments before being tabled for adoption. The Committee recalls in this respect that a tripartite committee can only fulfil its role if the employers and workers who are represented on it enjoy full independence, which does not seem to be the case in this instance.

B. The Government's reply

1. 424. In its letter of 9 April 1992, the Government states that regarding the autopsy report into the alleged death under torture of Dr. Ali Fadul, it is not in a position to forward a copy of the report. The case filed by the father of the deceased is still under consideration by the judicial authorities who have the required report; the Government will forward the report as soon as it is available.
2. 425. Regarding the steps taken to allow workers to freely establish and join unions of their own choosing, the Government indicates that during the Trade Union Dialogue Conference held in Khartoum in August 1990, 1,500 workers' representatives freely discussed the issues concerning the establishment of their trade unions and came out with specific recommendations on the structure, objectives and strategies of the trade union movement in the Sudan. On the basis of these recommendations, a tripartite committee was formed to draft the new Trade Union Law which is now operating after being endorsed by the competent authorities. The Government affirms that workers all over the country are now fully engaged in establishing the full freedom trade union bodies under this newly adopted Law, a copy of which it sent to the Office.
3. 426. Regarding the return of confiscated union property to the rightful owners, the Government states that under section 42(2) of the new Law, all assets and property which are in the possession of the preparatory committees will be automatically transferred to the new trade union bodies whose members are in the process of being elected by the preparatory committees.

C. The Committee's conclusions

1. 427. The Committee notes that the Government has not yet provided a copy of the autopsy report into the alleged death under torture of Dr. Ali Fadul. In view of the extremely serious nature of the allegation, the Committee regrets that the Government does not provide any further information as requested on the proceedings, such as the charges that have been laid by the family of the deceased, the court before which these proceedings are being held and the progress made so far in such proceedings. The Committee thus urges the Government rapidly to provide detailed information on these proceedings, as well as a copy of the autopsy report and of the judgement in this matter. The Committee moreover expresses its concern that the proceedings are still under consideration by the judicial authorities given that Dr. Fadul's death was notified to the Committee in May 1990 and that the Government informed the Committee of the family's institution of proceedings in November 1991. It stresses the importance in situations of this kind, where judicial inquiries connected with the death of trade unionists seem to be taking a long time to conclude, of proceedings being brought to a speedy conclusion since justice delayed is justice denied (see 268th Report, Cases Nos. 988 and 1003 (Sri Lanka), para. 14).
2. 428. The Committee notes that the complainant organisation concerned has still not responded to the request for further information on Messrs. Al Hag Osman, Mannalla Abdalla and Mohamed Faid who are allegedly detained and regretthat, in the absence of such information, it is not in a position to examine further this aspect of the complaint. Nevertheless, the Committee must recall that the arrest of trade unionists creates an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities.
3. 429. The Committee regrets that the Government did not provide any details on the composition of the tripartite committee which drafted the new Trade Union Law. It recalls in this respect that a tripartite committee can only fulfil its role if the employers' and workers' organisations which are represented on it enjoy full independence, which does not seem to be the case in this instance.
4. 430. The Committee notes that under the terms of section 42(1) of the new Trade Union Act, military Decrees Nos. 77 and 80 of 1989 are repealed. These Decrees along with military Decrees Nos. 2, 78 and 79 of 1989 had dissolved the former workers' and employers' organisations and replaced them by preparatory and steering committees.
5. 431. However, the new Act contains many provisions which are not compatible with the principles of freedom of association. For example, the Committee observes that section 4(2) excludes "judges, legal advisers in the office of the General Prosecutor, members of the diplomatic service and any other group for which a decree may be promulgated by the National Council" from the scope of the new Act. In the Committee's opinion, this constitutes a prohibition of the right of association not only for certain state employees, but also for a potentially large "any other group of workers" that the National Council deems appropriate. It is thus incompatible with the principle that workers without distinction whatsoever should have the right to establish organisations of their own choosing without previous authorisation (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 215). Similarly, section 9(1) of the Act which stipulates that the "Minister of Justice shall determine, on the basis of a regulation and the recommendation of the Registrar, the sectors and industries in which workers may form trade unions ..." and section 9(7) which states that "the Registrar may determine the unions which categories of workers may join if they are not included in the classification enacted by statute" place restrictions on freedom of association by subjecting it to the broad discretion and authorisation of government authorities. As such they are incompatible with the principle of freedom of association (Digest, para. 264).
6. 432. Furthermore, section 9(3) which prohibits the establishment of more than one union in each of the sectors or industries determined under subsection (1), permits the existence of only one organisation in the area in which the worker carries on his occupation, resulting in a situation in which an individual is denied any possibility of choice between different organisations. The same is true of section 36(c) whereby the General Registrar must refuse registration of an applicant union, if there already exists another union which has the same aims and objectives as the applicant union.
7. 433. This situation of trade union monopoly is contrary to the principles of freedom of association, as is section 15 of the Act which prohibits workers from joining more than one union. The Committee has emphasised the importance that it attaches to the fact that workers should in practice be able to form and join organisations "of their own choosing" in full freedom (Digest, para. 222). As a consequence of this, section 25(1) - which provides that the employer is obliged to deduct each month the membership fee from the salary of every worker who is affiliated to a union - constitutes legislative support for a monopoly trade union.
8. 434. As for section 12(1) which fixes a period of four years for the terms of office of trade union bodies, the Committee considers that it should be left to the unions themselves to set the period of terms of office. The Committee also notes that section 12(2), which provides that the Minister of Justice shall determine, by decree, the beginning and the end of the period of the terms of office, is in contradiction with section 12(1) and should be repealed.
9. 435. Section 14(2) states that the Registrar may decide to suspend the activities of the various committees of trade unions when they have infringed the provisions of the Act, the regulations enacted on the basis of the Act or the constitution of the trade union. Similarly, section 39(1) and (2) provides that the Registrar may dissolve a trade union federation, a trade union, a unit or a sub-unit of a trade union under certain conditions enumerated in this section. The Committee has emphasised the importance which it attaches to the principle that workers' and employers' organisations should not be subject to suspension or dissolution by administrative authority (Digest, para. 488). Although section 32(4) of this Act provides for a right of appeal to the Court of Appeal against the decisions of the Registrar, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decision by a judicial authority (Digest, para. 499), which is not the case here.
10. 436. Section 16 stipulates that a request for membership by anyone in a union as well as a request for withdrawal from the union may not be refused and that membership is effective automatically by virtue of the request if it is made for the first time. This provision also prescribes the conditions under which any member who has been excluded from a union may become a member again. Section 17 enumerates in detail the conditions under which a union member or a trade union officer may be excluded from a union, including the quorum needed and the trade union bodies that are competent to make such decisions. Such detailed substantive prescriptions on the conditions for membership, withdrawal and exclusion from a union constitute too great an interference in the internal affairs of a union and therefore infringe the principle that workers' organisations shall have the right to draw up their constitutions and rules in full freedom, without interference by the public authorities.
11. 437. As regards the supervision of trade union accounts, section 18(3) states that the Registrar can periodically inspect trade union funds in order to verify the legality of the financial procedures that have been used and that the Central Committees of unions have to submit to the Registrar all the documents and information asked for by him. Section 20 stipulates that the Central Committees of unions have to submit to the Registrar any information required by him relating to the unions' activities and within deadlines fixed by him. The requirements contained in these provisions are excessive in view of the principle that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports, and that inspection and furnishing of information whenever required by the authorities at their discretion entail a danger of interference in the internal administration of trade unions (Digest, para. 333).
12. 438. In a general manner, section 23 prohibits an employer from: transferring any member of the central, preparatory or executive committees of unions from his workplace after election to trade union office if this transfer results in a loss of membership in the committee; transferring any member to another region or professional category during his or her term of office; or imposing any penalties on any such member for reasons linked to his or her trade union activities. It would appear that this provision requires that trade union officials enjoy a certain degree of protection against acts of anti-union discrimination in respect of their employment and that it covers not only transfers, but dismissals, demotions and other prejudicial measures also. This provision is lacking, however, in that it only applies to trade union officials and not to workers in general and that it implies that an employer may carry out the prohibited acts with the permission of the union or the Registrar. Article 1 of Convention No. 98 protects all union members from acts of anti-union discrimination and this protection cannot be weakened by allowing an employer to carry out such acts with the authorisation of the administrative authority. Moreover, the ILO supervisory bodies have considered that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice, in line with Article 3 of Convention No. 98, which stipulates that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organise as defined in Articles 1 and 2. In the present case, the Act does not contain any such provision. The Committee therefore requests the Government to make provision in the Act for the setting up of impartial national machinery in conformity with Article 3 of Convention No. 98.
13. 439. The Committee notes that this Act is silent on the promotion of voluntary negotiation between employers' and workers' organisations, with a view to the regulation of workers' terms and conditions of employment as envisaged by Article 4 of Convention No. 98. The Committee requests the Government to clarify whether the principles of free collective bargaining are contained in some other piece of legislation and, if not, it urges the Government to bring the present Act into conformity with Article 4.
14. 440. Under the terms of sections 37 and 38, during the elections of representatives to various committees of trade unions, the Registrar has to establish a "surveillance committee" to supervise the elections. The Registrar also has to set up an "impartial committee" to supervise the elections in a trade union which has lost its legitimacy. The Registrar can cancel elections that have taken place when he establishes that they were irregular and he can order new elections. He can also decide to put a stop to ongoing elections if a request to that end is made to him or if he considers that the proper precedures are not being followed. The Committee considers that any intervention by the public authorities (in this case, the Registrar who is appointed by the State President) in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers' organisations which is incompatible with their right to elect their representatives in full freedom (Digest, para. 455).
15. 441. Finally, section 40(1) stipulates that notwithstanding the preceding provisions, the Minister of Justice will deal with several matters including: the determination of the minimum number of members needed to form a trade union unit or sub-unit and the determination of the number of representatives of trade unions at every level; the elaboration of principles relating to the constitution of trade unions, their role, their functions, their funds and the way in which these are used; the elaboration of procedures relating to general assembly meetings, the election of executive and central committees and the determination of the dates of such elections. This provision gives a broad discretionary power to the Minister to regulate minutely the internal election procedures of trade unions, the composition and the date of elections of their various committees, and even the way in which they should function. It thus is incompatible with the principles of freedom of association. Similarly, section 40(2) stipulates that the Minister may establish model rules for trade unions and trade union federations, which would serve as a base during the elaboration of their respective rules. This provision implies an obligation for trade unions to base their rules on the model drawn up by the Government and thereby infringes the right of workers' organisations to draw up their own constitutions and rules (Digest, para. 291).