Informe provisional - Informe núm. 304, Junio 1996

1. 255. In communications dated 19 September 1995, 9 December 1995 and 12 March 1996, the International Confederation of Free Trade Unions (ICFTU), the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGDT) and the Organization of African Trade Union Unity (OATUU) submitted complaints of violation of freedom of association against the Government of Djibouti. The UDT/UGDT sent additional information to support its complaint in a communication dated 28 January 1996. The Government of Djibouti made a number of comments and observations concerning this case in a communication dated 5 February 1996.
2. 256. Djibouti has ratified 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. The complainants' allegations

1. 257. In its communication of 19 September 1995, the International Confederation of Free Trade Unions (ICFTU) states that the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGDT) called a strike on 6 September 1995 to protest against the Government's systematic refusal to enter into dialogue with the trade unions, through established consultation machinery, on a number of vital social and economic decisions and several bills. The dispute concerned more particularly draft financial legislation which, according to the trade union movement, would have disastrous repercussions on workers' living standards.
2. 258. According to the ICFTU, about 80 per cent of the workers took part in the strike during the first two days. However, the Government took a series of repressive measures to put down the trade union movement. According to the Inter-Trade Union coordination group, these measures included arbitrary arrests, threats, dismissals or suspensions of trade union officials, particularly in the electricity, post and telecommunications, water and rail transport sectors.
3. 259. The ICFTU points out that on 14 September 1995, trade union officials were arrested and dismissed on the grounds that they had left their posts during the strike. Furthermore, 100 or so trade unionists were either suspended from their duties or dismissed. Ahmed Djama Egueh, president of the UDT and spokesman of the inter-trade union coordination group, was not only dismissed from his job at Djibouti airport but also forced to leave the accommodation provided with his job within 48 hours. Security forces from headquarters closed the premises of the UGDT and water and electricity supplies to trade unionists' houses were cut. The state and semi-state enterprises were occupied by the police. More than 25 teachers, including the president of the primary school teachers' trade union, were arrested and sent to detention centres. A number of parents of students, including women, were also imprisoned for having sympathized with the trade unionists.
4. 260. Subsequently, the Inter-Trade Union Association UDT/UGDT explains, in a first communication dated 9 December 1995, that the strike had been called because of the adoption of a finance bill considerably cutting workers' incomes. The Inter-Trade Union Association called peaceful demonstrations for 21 and 24 August 1995 and a general strike from 6 September 1995 onwards. The Government reacted by taking the following repressive measures.
5. 261. Arrests and sentencing:
   • - On 22 August 1995, Mohamed Doubad Wais, second deputy secretary-general of the UGDT, was arrested and sentenced to three months' imprisonment and fined 60,000 Djibouti francs following a complaint lodged by the Minister of Labour and Vocational Training.
   • - On 24 August, 68 workers were arrested, handled roughly and then taken to a camp guarded by the police on the outskirts of the town. - On 6 September, the following trade unionists were arrested: Ahmed Djama Egueh, president of the UDT and joint president of the Inter-Trade Union Association; Kamil Diraneh Hared, secretary-general of the UGDT and joint president of the Inter-Trade Union Association; Mahamoud Miguil Okieh, deputy general treasurer of the UGDT; Aden Mohamed Abdou, secretary-general of the UDT, spokesman of the Inter-Trade Union Association; Bouha Mohamed Daoud, vice-president of the UDT; Adbo Ibrahim Guireh, information secretary of the UDT; Youssouf Ibrahim Mohamed, information secretary of the UGDT; Moussa Ainan, first deputy secretary-general of the UGDT; Abdoulkalek Waberi Houffaneh, legal secretary of the UDT; Fouad Moussa Dawaleh, administrative affairs secretary of the UDT, as well as four air traffic controllers, i.e., Mohamed Ali Hirab, Aboubaker Moussa Robleh, Abou Egueh Sigad, Adbourazak Mohamed Hassan, members of the airport trade union.
   • - On 12 September, 28 workers from the public health, railways, transport and telecommunications sectors, and from various services under the Ministry of Labour, were imprisoned.
   • - On 17 September, 25 teachers, including those mainly responsible for calling the strike, were arrested, as well as the parents of students who had sympathized with them.
6. 262. Dismissals:
   • - The leading officials of the two trade union federations were dismissed. These were Kamil Diraneh Hared, Ahmed Djama Egueh, Aden Mohamed Abdou and Mohamed Doubad Wais, already mentioned as arrested, as well as Habib Ahmed Doualeh, legal secretary of the UGDT, and Ahmed Birir Omar, administrative secretary of the OPT trade union. Three officials from the Djibouti-Ethiopian railways were also dismissed: Houssein Dirieh Gouled, Ahmed Elmi Fod and Moussa Waiss Ibrahim, members of the railway workers' trade union. The complainants enclose copies of the letters of dismissal of a number of these trade unionists.
   • - Four hundred teachers were disqualified from public service by an internal letter from the Ministry of Education.
7. 263. Suspensions:
   • - Eight officials from the health services trade union were suspended from their jobs. All public services were surrounded by the police who forced workers, who were on the picket line, to resume work. The trade unionists were banned from their workplace. They were hunted down, arrested and arbitrarily imprisoned after being ill-treated and beaten up. The police tracked the trade union officials down even to their homes, which they also searched every night to put pressure on the families.
8. 264. In a later communication dated 28 January 1996, the Inter-Trade Union Association pointed out that the situation of the dismissed trade union officials, including the two presidents of the trade union federations, remained unchanged. The Government refused dialogue. According to the complainants, the Government had amended, without any previous discussion, a number of sections of the Labour Code on 29 November 1995 and adopted a law increasing income tax.
9. 265. On 9 January 1996, the primary school teachers' trade union (SEP) and the secondary school teachers' trade union (SYNESED) decided to call a general strike to protest against the delay in the payment of their salary arrears. Two hundred and thirty teachers were arrested and imprisoned in a camp guarded by the police. Two hundred and seventeen of these teachers were subsequently released in the village of Goubatto, 20 kms from the capital. The 13 others, including the presidents of both trade unions, were ordered to appear before the state court on 14 January 1996 but released thanks to the intervention of their lawyers and the fact that workers from throughout the country gathered before the Law Courts. Furthermore, 180 substitute primary school teachers were also dismissed on 28 January 1996 for having taken part in the strike. The schools have been closed since 9 January 1996.
10. 266. The Inter-Trade Union Association communicates the names of the trade union officials wrongly dismissed, as well as their positions in their grass-root trade unions or in one of the two federations. In addition to those mentioned in the previous communication, the persons concerned are as follows: Mohamed Nasser Abas, Hachin Adaweh Ladieh and Abdoulkader Mohamed.
11. 267. In a communication dated 12 March 1996, the Organization of African Trade Union Unity (OATUU) denounces the fact that officials from the UDT and the UGDT named earlier by the complainants, were detained at police premises and then dismissed, and adds that the Government has set up a trade union organization supporting its cause: the Djibouti Labour Congress (CODJITRA).

B. The Government's reply

1. 268. In its communication of 5 February 1996, the Government starts by stating its support for trade unions which it believes are vital and stresses that there can be no social democracy without them. It explains, however, that it is up against an ideological deadlock in trying to establish a democratic system.
2. 269. According to the Government, a nation can only be created by a State once it has succeeded in achieving a long period of peace. It must be remembered, when speaking of democracy, that universal suffrage was only introduced in most European countries at the beginning of the twentieth century after a long process of political education of the people. Since 1991, Djibouti has been embarked on a democratic process. The fact that the colonial period and the one- party political system are not so far removed has left the Djibouti people ill-equipped suddenly to be in control of their own destiny. The Government continues by stating that society is at present extremely politically aware as the population have become interested in political matters. The Government acknowledges that it is no longer possible to ignore the population because the system cannot work without its participation. It realizes that trade unionism arose as a reaction to the political failure of the one-party system. However, it regrets that trade unionism should have become a matter for a group of people who do not hide their intentions. According to the Government, these people are not merely seeking to defend trade union freedoms by taking part in demonstrations but trying to discredit the public authority. The trade union officials are trying to make the problem a political issue, mixing trade unionism and political opposition. The clash between these schools of thought is resulting in extremely serious social upheavals requiring the intervention of the police to re-establish law and order.
3. 270. The Government adds that, in spite of the fact that the Constitution stipulates that the President of the Republic has the legal possibility to suspend the constitutional guarantee of freedoms in a case of crisis - the concept of crisis being understood in the widest sense of the term - the President El Hadj Hassan Gouled Aptidon has preferred to settle disputes by peaceful means, i.e. conciliation, mediation and arbitration. The Government maintains that it sought dialogue and accuses the Djibouti trade unions of being closed associations which have become the property of administrative officials. The Government feels that this matter does not concern trade unionism but a movement linked to the trade union movement and it claims that, when the population failed to take action and remained indifferent to the trade union movement, the complainants called upon the ILO. The Government is of the opinion that the strike demonstrates the existence of a dispute.
4. 271. Finally, and to reply to the allegations, the Government specifies that the account given by the complainant trade union federation of the events which occurred is totally unfounded, because the situation was due to the trade unions' uncompromising refusal to enter into negotiations.
5. 272. The Government points out that it would be grateful to the ILO to provide Djibouti with a consultant who would be entrusted, under the Ministry of Labour, with training trade unionists and drafting a Labour Code, as well as reviewing social legislation.

C. The Committee's conclusions

1. 273. The Committee notes with concern that the serious allegations pending in this case concern the arrests, dismissals and suspensions of trade unionists, following protest strikes against the Government's economic and social policy in a very large number of branches of activity, as well as the closure of the UGDT premises and the setting up of a trade union organization supporting the cause of the Government.
2. 274. The Committee notes that the Government has merely put forward views of an extremely general nature on political developments in Djibouti and on the utility of democracy, while accusing trade unionists of actions which are political rather than of a trade union nature. The Committee notes with deep regret that the Government did not make any specific comments on the allegations made by the complainants.
3. 275. In view of the fact that the Committee was called upon to examine a serious complaint of violation of freedom of association last year in the absence of a reply from the Government (see Case No. 1803, 299th Report, paras. 329 to 341, approved by the Governing Body at its session in June 1995), the Committee reminds the Government once again that the purpose of the complaints procedure on freedom of association is to ensure respect for trade union rights, both in law and in fact. The Committee is therefore convinced that while this procedure protects governments against unreasonable accusations, they must for their part recognize the importance of formulating detailed and factual replies to allegations made against them with a view to facilitating an objective examination by the Committee. The Committee would recall that in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, procedure in force, para. 21.)
4. 276. Concerning the substance of the allegations, the Committee notes that the two trade union federations in Djibouti, grouped together in an Inter-Trade Union Association, UDT/UGDT, called a strike in September 1995 to protest against draft financial legislation which, according to the complainants, had disastrous repercussions on workers' living standards and against the Government's refusal to discuss with the trade unions beforehand. This two-day strike had allegedly been followed in many branches of activity and it resulted in many arrests and the sentencing of activists and trade union officials, as well as wide-scale dismissals and suspensions (400 teachers, for instance). The complainants provide examples of letters of dismissal of several activists and trade union officials, on the grounds they had left their posts. The complainants also communicate other letters of dismissal on grounds of gross misconduct within the Djibouti-Ethiopian railways, stating that those concerned had been recognized guilty of aggression against an official in the course of his duties. Finally, the complainants enclose a letter ordering the suspension of wages and functions on the grounds of incitement to violence and disturbances in a hospital.
5. 277. Later, the teachers called a strike on 9 January 1996 to protest against the delay in the payment of the arrears on their salaries. This strike was allegedly followed by the arrest of 230 teachers - of whom 217 were subsequently released - and the dismissal of 180 substitute primary teachers. Thirteen of the teachers arrested were allegedly brought before the court but then released thanks to the intervention of their lawyers. Finally, the OATUU denounces the setting up of a trade union organization in support of the Government, the Djibouti Labour Congress.
6. 278. The Committee notes that the Government reiterates its attachment to trade unions and democracy but denounces the serious social unrest which shook the country and forced it to bring in the police to re-establish law and order. The Government does not however provide any information on the nature of these disturbances. It points out that the President of the Republic did not suspend the Constitution and it maintains that he preferred to resort to conciliation, mediation and arbitration as a peaceful way of settling disputes, without providing, however, any indications in this respect.
7. 279. The Committee notes that the main reason which prompted the trade union action seems to be that bills of an economic and social nature were prepared and adopted without any prior consultation of the trade union organizations. In this respect, the Committee would recall the value and importance of prior consultation of employers' and workers' organizations during the preparation and application of any legislation in the field of labour law or, more generally, legislation which affects their interests. (See Digest, op. cit., paras. 929 and 930.) In this context, the Committee notes that the Government would be grateful if the ILO put at its disposal a consultant who would be entrusted, amongst other things, with drafting a new Labour Code and revising social legislation. Indeed, the Committee feels that technical assistance provided by the International Labour Office could effectively contribute to elaborate a draft Labour Code which would fully guarantee the rights enshrined in the Conventions in the areas of freedom of association and collective bargaining.
8. 280. As regards the serious repressive measures taken against the workers in several public sectors of the economy because they had taken part in strikes to protest against the Government's economic and social policy, the Committee points out that the occupational and economic interests which workers are able to defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions which are of direct concern to the workers. (See Digest, op. cit., para. 479.) While purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policy without incurring reprisals. (See Digest, op. cit., para. 482.) The Committee therefore urges the Government to take account, in the future, of these principles and not consider strikes of this nature illegal. In any event, responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. (See Digest, op. cit., para 522.)
9. 281. Concerning more particularly the arrests and penal sanctions of trade unionists following these strikes which include:
   • - Mohamed Doubad Wais, second deputy secretary-general of the UGDT, arrested and sentenced to three months' imprisonment;
   • - Ahmed Djama Egueh, president of the UDT and joint president of the Inter-Trade Union Association;
   • - Kamil Diraneh Hared, secretary-general of the UGDT and joint president of the Inter-Trade Union Association;
   • - Mahamoud Miguil Okieh, deputy general treasurer of the UGDT;
   • - Aden Mohamed Abdou, secretary-general of the UDT and spokesman of the Inter-Trade Union Association;
   • - Bouha Mohamed Daoud, vice-president of the UDT;
   • - Abdo Ibrahim Guireh, information secretary of the UDT;
   • - Youssouf Ibrahim Mohamed, information secretary of the UGDT;
   • - Moussa Ainan, first deputy secretary-general of the UGDT;
   • - Abdoulkalek Waberi Houffaneh, legal secretary of the UDT;
   • - Fouad Moussa Dawaleh, administrative affairs secretary of the UDT;
     • as well as Mohamed Ali Hirab, Aboubaker Moussa Robleh, Abou Egueh Sigad and Abdourazak Mohamed Hassan, members of the airport trade union and air traffic controllers, and the large number of other workers referred to by the complainant, the Committee notes that the Government has not denied these allegations. The Committee recalls that penal sanctions should only be imposed as regards strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. (See Digest, op. cit., paras. 591 and 599.) The Committee urges the Government to release the trade union officials and activists arrested for strike action and to keep it informed of the situation of the trade union officials and trade unionists arrested who, it would seem, are still subject to judicial proceedings. It also requests it to communicate the text of any legal decision taken in this respect.
   • 282. Concerning the dismissals and suspensions following the strike which affected Kamil Diraneh Hared, Ahmed Djama Egueh, Aden Mohamed Abdou, Mohamed Doubad Wais - already mentioned as arrested - and Habib Ahmed Doualeh, legal secretary of the UGDT, Ahmed Birir Omar, administrative secretary of the OPT trade union, Mohamed Nasser Abas, Hachin Adaweh Ladieh, Abdoulkader Mohamed, as well as Houssein Dirieh Gouled, Ahmed Elmi Fod and Moussa Waiss Ibrahim, members of the railway workers' trade union, and eight officials of the health services trade union (suspended) and 400 teachers (struck off) and 180 primary substitute teachers, the Committee notes that the Government did not refute these allegations either. In these circumstances, the Committee recalls that the dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious anti-union discrimination in employment. Although it emerges from the documentation enclosed with the complaint that a number of dismissals of strikers were made on grounds of gross misconduct, i.e. for having been found guilty (by the management of the enterprise and not by a legal decision) of aggression against an official in the course of his duties, the Committee recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries. (See Digest, op. cit., para. 586.) As regards the allegation that the police forced workers who were on the picket line to resume work, the Committee recalls that strike pickets organized in accordance with the law should not be subject to interference by the public authorities.
10. 283. The Committee therefore urges the Government to take measures as soon as possible to lift the severe penalties imposed on the strikers. It particularly requests it to reinstate the trade union officials and trade unionists dismissed or suspended for lawful trade union activities linked to the defence of workers' interests.
11. 284. Finally, as regards the closing of the UGDT premises by the security forces, the Committee notes that the Government also failed to reply to this allegation. The Committee recalls that any search of trade union headquarters without a court order constitutes a serious infringement of freedom of association. The Committee considers that an independent judicial review should be carried out concerning the closing of trade union premises, in view of the significant risk that such measures may paralyse trade union activities. (See Digest, op. cit., paras. 177 and 183.) The Committee requests the Government to communicate its comments on this aspect of the case.
12. 285. The Committee also requests the Government to make any comments and observations it considers appropriate concerning the allegation of the OATUU that it has set up a trade union organization supporting its cause called the Djibouti Labour Congress.