Rapport intérimaire - Rapport No. 107, 1969

4. These cases consist of two series of allegations, one of which, presented by the International Confederation of Free Trade Unions (I.C.F.T.U.) in September 1964 and subsequently supported by several other organisations, relates to the detention of trade unionists and to restrictions on trade union meetings. The other series of allegations, formulated by the World Federation of Trade Unions (W.F.T.U.) in January 1961, originally referred to several alleged infringements of trade union rights but, as the Committee disposed of certain of these allegations, there now remain outstanding two questions relating to the Industrial Conciliation Act, 1959, one concerning the registration of trade unions thereunder and the other the organising rights of agricultural workers and domestic servants.

1. 4. These cases consist of two series of allegations, one of which, presented by the International Confederation of Free Trade Unions (I.C.F.T.U.) in September 1964 and subsequently supported by several other organisations, relates to the detention of trade unionists and to restrictions on trade union meetings. The other series of allegations, formulated by the World Federation of Trade Unions (W.F.T.U.) in January 1961, originally referred to several alleged infringements of trade union rights but, as the Committee disposed of certain of these allegations, there now remain outstanding two questions relating to the Industrial Conciliation Act, 1959, one concerning the registration of trade unions thereunder and the other the organising rights of agricultural workers and domestic servants.
2. 5. At its meeting in February 1966, when it last examined these allegations, the Committee took note of a communication dated 7 February 1966 from the Government of the United Kingdom, in which the Government, after stating that " the former Government of Southern Rhodesia illegally purported to declare independence on 11 November 1965, on which date Mr. Smith and his Ministers were dismissed from office ", indicated that " when fully Constitutional authority has been restored in Rhodesia the complaints communicated by the I.C.F.T.U and other bodies, together with the observations already made by the Committee, will be brought in due course to the attention of the competent authorities ".
3. 6. The Government of the United Kingdom has subsequently confirmed its position with regard to these complaints in a communication dated 5 September 1968. In addition, the Government went on to state:
   • Because of the illegal declaration of independence Her Majesty's Government were not, and still are not, in a position to exercise their functions in relation to these alleged violations, but when a Constitutional government is restored in Rhodesia, they will not fail to bring these allegations to the notice of the competent Rhodesian authorities.
   • Her Majesty's Government deplore infringements of trade union rights wherever they occur. They view with concern the facts alleged regarding Rhodesia and have consistently attempted to fulfil their obligations with respect to the allegations. However, in the circumstances resulting from the illegal declaration of independence, Her Majesty's Government regret that they are not in a position to obtain or supply for the Committee on Freedom of Association authoritative information on the trade union situation in Rhodesia.
4. 7. The Committee recalls the resolution on Southern Rhodesia adopted by the Governing Body at its 163rd Session (November 1965), in which the Director-General was requested, inter alia, " to refrain from having any official or unofficial contacts, direct or indirect, with the illegal régime in Southern Rhodesia ". In the same connection the Committee has also taken note of the resolution adopted by the Security Council on 20 November 1965 calling upon " all States not to recognise this illegal authority and not to entertain any diplomatic or other relations with this illegal authority ". In view of these resolutions the I.L.O has had no contact with the authorities in Southern Rhodesia and the Committee has neither requested nor received from these authorities observations on the allegations raised in the case.
5. 8. Since the Committee last examined the case, the Economic and Social Council has adopted resolution 1302 (XLIV), in which, inter alia, it decided to request the Ad Hoc Working Group of Experts, established under resolution 2 (XXIII) of the Commission on Human Rights and responsible for the examination of certain allegations regarding infringements of trade union rights in the Republic of South Africa, " to carry out, in co-operation with the United Kingdom, the administering Power, and in co-operation with the International Labour Organisation, taking due account of the latter's primary responsibility in this matter, similar examinations of the denial and infringements of trade union rights by the illegal racist régime in Southern Rhodesia ". The Committee recalls that the I.L.O's primary responsibility in this matter is recognised under the procedure for the examination of alleged infringements of trade union rights agreed upon between the United Nations and the International Labour Organisation, as set forth in the letter of 19 January 1950 from the Director-General of the I.L.O to the Secretary-General of the United Nations stating the proposed terms of reference of the machinery to be set up for this purpose, which were subsequently approved by the Economic and Social Council when it adopted resolution 277 (X) concerning trade union rights (freedom of association) on 17 February 1950. According to these arrangements, all allegations received by the United Nations against I.L.O member States would be forwarded by the Economic and Social Council to the Governing Body of the International Labour Office.
6. 9. In these circumstances the Committee proposes to examine these cases again, taking due account of the many communications it has received from the complainant organisations since it last considered the matter in February 1966, and to recommend the Governing Body to restate the principles pertinent to the case.
7. 10. The Government of the United Kingdom, which has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), undertook, with the agreement and on behalf of the Government of Southern Rhodesia, to apply the provisions of this Convention to Southern Rhodesia without modification (declaration registered on 27 March 1950). This Convention provides that " the rights of employers and employed alike to associate for all lawful purposes shall be guaranteed by appropriate measures ". The United Kingdom has also ratified the Right of Association (Agriculture) Convention, 1921 (No. 11), 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). Prior to the illegal declaration of independence, as the subject-matter of these Conventions was within the self-governing powers of Southern Rhodesia, the United Kingdom Government, in accordance with the relevant Constitutional provisions, brought the Conventions to the notice of the Government of Southern Rhodesia. Decisions were reserved regarding the application of these three Conventions to Southern Rhodesia in declarations registered, respectively, on 20 November 1963, 23 February 1959 and 26 August 1958.

Allegations relating to Detentions of Trade Unionists

1. 11. These allegations, originally formulated in a complaint submitted by the I.C.F.T.U in a letter dated 4 September 1964, relate to the detention without trial of certain trade unionists. The complaint was supported by the International Federation of Industrial Organisations and General Workers' Unions, the W.F.T.U, the International Federation of Free Teachers' Unions and the Postal, Telegraph and Telephone International, and further information was also supplied by the I.C.F.T.U.
2. 12. When the Committee considered the case at its meeting in February 1965, it had before it certain communications from the above organisations containing the names of the persons who, it was alleged, were at that time in detention, together with an indication of the alleged detention centre in each case. It had also received three communications from the Government of the United Kingdom, forwarding the observations of the Government of Southern Rhodesia on the allegations. The Government of Southern Rhodesia stated in its observations that the allegations were groundless, that there were no restrictions on freedom of association for trade union purposes and that no repressive measures had been taken against trade unions. According to the Government, the persons mentioned in the complaint were not restricted or detained because of their trade union activities but for subversive activities in no way connected with trade unionism. It was also indicated that, according to the Government of Southern Rhodesia, certain of the persons mentioned in the complaint were not trade unionists or trade union officials.
3. 13. The Committee recalled that, on considering the case at its meeting in February 1965, it had pointed out that in the past, where allegations that trade union leaders or workers have been arrested or detained on account of trade union activities have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further information as precise as possible concerning the arrests or detentions and the exact reasons therefor. If in certain cases the Committee had concluded that allegations relating to the arrest or detention of active trade unionists did not call for further examination, this had been after it had received information from the governments showing in a sufficiently clear and detailed way that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.$
4. 14. Noting that the Government had given no reasons for the alleged detentions and other restrictions, the Committee decided, in accordance with the practice referred to in the preceding paragraph, to request the Government to inform it of the exact reasons for the arrest or restriction of the persons in question. Furthermore, as the allegations related to the detention of persons without trial, the Committee, in view of the importance it has always attached to the right of all detained persons to receive a fair trial at the earliest moment, decided to request the Government to inform it whether legal proceedings had been instituted against the persons concerned and, if so, to furnish copies of the judgments given and of the reasons adduced therein.
5. 15. Subsequently s, further communications were received from the complainants alleging principally the detention without trial of certain persons whose names were indicated. By a communication dated 2 September 1965 the Government of the United Kingdom again supplied certain information on behalf of the Government of Southern Rhodesia, in which the latter confirmed its position with regard to the complaints.
6. 16. On examining these allegations again at its meeting in February 1966, the Committee, having taken note of the communication dated 7 February 1966 from the Government of the United Kingdom (see paragraph 5 above), submitted to the Governing Body the following recommendations, contained in paragraph 67 of its 87th Report:
7. (a) to take note of the communication dated 7 February 1966 from the Government of the United Kingdom and in particular:
8. (i) to take note with satisfaction of the Government's assurance that it deplores all infringements of trade union rights and of the representations it made to the authorities in Southern Rhodesia, prior to the unilateral declaration of independence by the authorities in Southern Rhodesia on 11 November 1965, urging those authorities to co-operate with the Committee and furnish information requested by it and to take urgent steps to remedy any infringement of trade union rights that might be found to have occurred;
9. (ii) to take note of the Government's further assurance that, when fully Constitutional authority has been restored in Southern Rhodesia, the complaints presented in this case and the observations already made by the Committee will be brought in due course to the attention of the competent authorities;
10. (b) to request the Government of the United Kingdom to be good enough to keep the Governing Body informed of further developments in the matter.
11. 17. Since then, further communications containing allegations of additional detentions have been received.
12. 18. In a communication dated 15 April 1966, the I.C.F.T.U forwarded a list of 85 trade union officials and members who, it alleged, were under detention. Many of the persons in question had been referred to in the I.C.F.T.U's previous communications on this subject. It was further alleged that " all detained trade unionists, although not being accused of any crime, are under prison discipline, without having been subjected to trial ". The I.C.F.T.U claimed that, as appeared clearly from the lists of detained trade unionists, the functioning of a number of trade unions had been severely hampered by the arbitrary detention of trade union officers and members.
13. 19. The Public Services International, in a communication dated 20 April 1966, claimed that seven officials and members of the Southern Rhodesia Municipal Workers' Union had been detained without trial. As a result, the union was allegedly being handicapped, if not wholly paralysed. All of the persons named in this communication had been referred to in the I.C.F.T.U's letter of 15 April 1966.
14. 20. In a communication dated 26 April 1966, the International Union of Food and Allied Workers' Association (I.U.F.) expressed its support for the complaint submitted by the I.C.F.T.U, claiming in particular that a number of the detained trade unionists were members of organisations affiliated to the I.U.F, namely the Commercial and Allied Workers' Union and the United Food and Allied Workers' Union. According to the I.U.F, these detentions severely hampered the functioning of the organisations in question.
15. 21. In a communication dated 28 April 1966, the International Federation of Free Teachers' Unions claimed that 27 officials and members of the Rhodesia African Teachers' Association, a list of whose names it attached, had been arrested and detained without any charges being brought against them. These arrests, it was alleged, had the result of making impossible the normal functioning of the union in question. The 27 trade unionists referred to in this communication had already been mentioned in the I.C.F.T.U's letter of 15 April 1966.
16. 22. In a letter dated 10 May 1966, the International Federation of Commercial, Clerical and Technical Employees expressed its support for the complaint submitted by the I.C.F.T.U, alleging that 14 officers and members of its affiliated union in Southern Rhodesia, the S. R. Commercial and Allied Workers' Union, were in detention and that in consequence the Union was in great difficulties in trying to carry out its normal activities.
17. 23. By a communication of 3 June 1966, the I.C.F.T.U brought up to date the information furnished in its letter of 15 April 1966 by supplying a list of 88 trade unionists alleged to be in detention in Southern Rhodesia. This new list resulted from the release of some trade unionists previously detained and the arrest of certain others.
18. 24. By a communication dated 3 February 1967, the I.C.F.T.U supplied a revised list of 138 trade unionists alleged to be in detention in Southern Rhodesia.
19. 25. In a communication dated 29 June 1967, the W.F.T.U alleged that, apparently under the emergency regulations and the Law and Order (Maintenance) Act, all the most important trade union leaders have been imprisoned without trial. The W.F.T.U supplied a list of 143 trade union leaders and members alleged to be in detention, this list being substantially the same as that communicated by the I.C.F.T.U in its letter of 3 February 1967.
20. 26. The I.C.F.T.U communicated on 17 November 1967 an up-to-date list (as of 22 October 1967) of 168 trade unionists alleged to be in detention in Southern Rhodesia. The list, indicating the detention camp or prison and the union membership in each case, is as follows:
21. GONAKUDZINGWA RESTRICTION CENTRE - Railways and Allied Workers' Union: John M. Matshazi; Transport Workers' Union: P. Macheri, D. M. Mbidzo, Moses Mapingire, Charles Nkomo, Lawrence Shumba; S. R. Commercial and Allied Workers' Union: E. P. Usavi, G. Dhlamini, T. S. Chinembiri, Edward Kambiro, Cephas W. Kanda, J. Kaunda, Joel Lupahla, John Mabena, Tapera Faro Manyika, E. Mangozho, Fannuel Mavudzi, M. Msariri, Peter Muchemwa, J. C. Mutuda, Luke Muusha, J. Ncube, Daniel Ndlela, L. M. Ndlela, P. Nkala, J. Metema Nyati, N. Sibanda, T. S. Sigwazi, B. J. Tshuma; Rhodesia United Food and Allied Workers' Union: Paul Rugani Huni, Taught H. B. Kumalo, Nicholas Gaga Nyamukoko, Donald Bango, J. Dhlamini, K. Mtemachani, Noah Msimanga; Tobacco Workers' Union: Nicholas Gondo, R. E. Chimombe; Soap, Edible Oil and Fats Workers' Union: Francis T. Tapfumaneyi, Edam M. Gabaza, G. M. Maredza, Livingston Mjokoro, Billie Musakwa, T. S. Nyandoro; United Textile Workers' Union of Rhodesia: Josiah Nkomo, Milton Sibanda; S. R. Tailors' and Garment Workers' Union: E. M. Ndhlongwa, Nicholas Dawe, Modicay Mlotshwa, John Nduna, Major Mhlanga, J. B. Mtembo, Enock Mkala, Cephas M. Sibanda, William M. Sibanda, Maxwell J. Wanawanda; Rhodesia Municipal Workers' Union Daniel Sigola, Vote Moyo, Moses James Ndlovu; S. R. Post and Telecommunications Workers' Association: Newton Mutiro; Rhodesia African Teachers' Association: Johnson Nkandhla, M. Ndlovu, J. Mapiye Goromonzi, K. Mehlo, Z. Hove, Shadreck Darlington Danisa, N. M. Dube, L. S. Kumalo, M. A. Kumalo, Welshman Mabena, Georges Marange, J. K. Mleya, B. Mlilo, Z. L. Mlilo, J. Moyo, P. J. Moyo, Patrick K. Moyo, H. T. Msikawanhu, Titus Murambi, J. Ncube, S. N. Ncube, M. J. Ndhlovu, N. K. Ndlovu, E. N. Ngwenya, T. C. Mjawaya, J. L. Nkomo, Zenze Mzaca Nkomo, A. Nyati, E. P. Nyati, K. R. Shava, J. Sibanda, J. T. Tsodzo; S. R. Engineering and Metal Workers' Union: F. Chitunhu, Naboth Sibanda; United Building and Woodworkers' Union Enock Chinyerere, Boyson Mguni, Ignatious Mike, Nekati Muchenje, Lazarus M. Nkala; Agricultural and Plantation Workers' Union: Amasi Sibanda, Edward Kumalo, Dani Ncube; S. R. Motor Trade Workers' Union: Philemon Chiruka Bvunzawabaya, James P. Kombe, Scot G. Kumalo, Meshack Makhena, Nicholas T. Manzonza, Leonard Maposa, Josiah X. Mpofu; S. R. Petrol and Oil Storage Distributive Workers' Union: Gabriel Mudavanhu, Augustine Chitsa; Radio and Television Workers' Union: Patrick K. Moyo; Rhodesia Hides, Shoe and Leather Workers' Union Tsikayi Chinembiri, Morris Tumba Masarurwa.
22. GWELO PRISON - Railways and Allied Workers' Union: Major Findo Mpofu; S. R. Commercial and Allied Workers' Union: James B. Chatagwe, George Mwanjira, John Robert Mzimela, Amos Mnkwananzi, Zipper Ncube, Stone Nkomozana; Rhodesia United Food and Allied Workers' Union Zenze Njini; United Textile Workers' Union of Rhodesia: Ronald Kaviza; S. R. Tailors' and Garment Workers' Union: J. W. Mtimkulu; Rhodesia Municipal Workers' Union: Clark S. Mpofu, Clement M. Muchachi; Rhodesia African Teachers' Association: Cepas G. Msipa, Freddy Chimganda, Moses Togwe; United Building and Woodworkers' Union: Zephania K. Sihwa, Canaan Z. Moyo, Alick M. Tshabangu; Agricultural and Plantation Workers' Union: Luma Dupa, J. M. Guduza, Sydney Joseph, Zephania Sibanda; S. R. Motor Trade Workers' Union: Anthony Masawi, Amos Todd Msongelwa; S. R. Paint Manufacturing Workers' Union: M. A. Magena; S. R. Petrol and Oil Storage Distributive Workers' Union: Lea D. Kaseke, Daniel N. Madzimbabuto.
23. SALISBURY PRISON - Railways and Allied Workers' Union: Michael Mawema; Transport Workers' Union: Josiah Takawira Mabika; S. R. Commercial and Allied Workers' Union: Jameson Mudavanhu, George Mudukuti, Moses Jackson Mvenge, Edson Shirihuru, Phibeon Shoniwa, Goodson G. Sithole, Edgar Zivanai Tekere, Thomas P. C. Ziki; Rhodesia United Food and Allied Workers' Union: Maurice Nyagumbo; S. R. Post and Telecommunications Workers' Association: Bernard Samushonga; United Building and Woodworkers' Union: M. N. C. Chivende; Asbestos, Cement and Lime Workers' Union: Mathew Maloba, Solomon Nkomo.
24. KHAMI PRISON - Transport Workers' Union: P. B. Sithole; S. R. Tailors' and Garment Workers' Union: Ben K. Tuputsa; Rhodesia African Teachers' Association: John L. Marshakada; S. R. Engineering and Metal Workers' Union: Gilbert Majiri; Asbestos, Cement and Lime Workers, Union: Noel Chikanya, Shame Zwikaramba.
25. WHA WHA - Rhodesia Municipal Workers' Union: Innocent Nkomo; Rhodesia African Teachers' Association: C. P. N. Mavudzi, I. X. Nkomo; Rhodesia United Food and Allied Workers' Union Aaron Lubimbi.
26. SIKOMBELA - Rhodesia African Teachers' Association: Thomas Tavagwisa Zawaura; Transport Workers' Union: Evaristo Solomon Marembo.
27. 27. On 6 December 1967, in a telegram addressed to the Secretary-General of the United Nations, the I.C.F.T.U protested at the death sentences passed on seven Africans in Southern Rhodesia and the denial of fundamental human, political and trade union rights. This communication was forwarded to the I.L.O. by the Secretary-General of the United Nations.
28. 28. All of the communications referred to in the preceding paragraphs were transmitted, as they arrived, to the Government of the United Kingdom for any comments that the Government may have wished to make on the matters raised therein. With regard to the communication of 6 December 1967 addressed to the Secretary-General of the United Nations by the I.C.F.T.U. (see preceding paragraph), the Government noted, in a letter dated 7 February 1968, that the communication did not state that the seven Rhodesian Africans sentenced to death, or any of them, were trade unionists. The Government continued by pointing out that it had, of course, expressed its views about " the illegality and inhumanity of carrying out executions in Rhodesia, but since this matter is now before the courts it would be wrong to say more at present ". In respect of the other communications transmitted to the Government for its comments, the Government replied that the position in the matter remained as stated in its letter of 7 February 1966 (see paragraph 5 above).
29. 29. The Committee has taken note of the increase in the number of alleged detentions referred to in the various communications from the complainants and notes that, according to the I.C.F.T.U, there were 168 trade union officials and members in detention on 22 October 1967. It also observes that several of the complainant organisations refer to the difficulties encountered by the Southern Rhodesian trade unions in conducting their normal activities in view of the detention of certain of their officials and members.
30. 30. Without expressing an opinion on the Constitutional validity of the legislation and regulations adopted in Southern Rhodesia since November 1965-a question which is not within the Committee's competence-the Committee has examined the legislation in accordance with which the alleged detentions appear to have been carried out, in particular the Law and Order (Maintenance) Act, 1960, and the Emergency Powers Act, 1960, together with the subsequent amendments of these Acts. As the provisions of the Emergency Powers Acts and of the regulations adopted thereunder are far wider than those of the Law and Order (Maintenance) Act, which they would appear to have superseded, the Committee has confined its examination to them.
31. 31. Under the Emergency Powers Act, 1960, and the Emergency Powers Amendment Acts of 1966, 1967 and 1968, the Officer Administering the Government may make such regulations as appear to him to be necessary or expedient for, inter alia, the public safety, the maintenance of public order and the maintenance of any essential service. In particular, such regulations may make provision for the summary arrest, detention or restriction of the movements of any person whose arrest, detention or restriction of movement, as the ease may be, appears to the Minister to be expedient in the public interest; the removal from one part of Rhodesia to some other part of Rhodesia of any person whose removal appears to the Minister to be expedient in the public interest; and the entering and search of any premises. Moreover, in the Act of 1968 it is provided that, notwithstanding this enumeration of specific powers, the Officer Administering the Government may make such regulations as appear to him to be necessary or expedient, whether or not such regulations relate to any of the matters specified in the Act and whether or not such regulations are inconsistent with the enumeration of his specific powers. Under the Act of 1960, the maximum penalty that could be imposed under the emergency regulations was a fine of £500 or imprisonment for a period not exceeding two years or both such fine and imprisonment; section 2 (1) (a) of the Act of 1968 now permits the imposition under the regulations of any penalty.
32. 32. With regard to the emergency regulations made under the Emergency Powers Act, as amended, a state of emergency may not last for longer than three months, and accordingly the validity of emergency regulations is limited to a similar period. Since November 1965, however, on each expiry of this three-month period, a new state of emergency has been proclaimed and new regulations adopted. The Committee has examined the most recent emergency regulations adopted and in particular the Emergency Powers (Maintenance of Law and Order) (No. 2) Regulations, 1968.
33. 33. The Committee notes that these Regulations make provision, inter alia, for the control of distributing, printing and publishing of newspapers, pamphlets, etc., the removal of an individual from an area, the restriction of an individual to an area, and the search without warrant of persons or premises. The Committee has taken note, more particularly, of sections 21, 24 and 41 of the Regulations, which read as follows:
34. 21. (1) If it appears to the Minister that the detention of any person is expedient in the public interest, he may by order under his hand direct that such person be detained:
35. (a) by being kept in such prison or other place; or
36. (b) by being prohibited from absenting himself from such place; a as the Minister may direct and in accordance with instructions issued by the Minister.
37. ......................................................................................................................................................
38. (4) Every person detained in terms of an order made under subsection (1) shall be deemed to be in lawful custody.
39. ......................................................................................................................................................
40. 24. (1) Any police officer may without warrant arrest and detain, pending inquiries, any person in respect of whom he has reason to believe there are grounds which would justify his detention under section 21.
41. ......................................................................................................................................................
42. (3) No person shall be detained under the provisions of this section for a period exceeding thirty days.
43. (4) Any person detained under the powers conferred by this section shall be deemed to be in lawful custody and may be detained in a prison or police station or in any other place authorised generally or specially by the Minister as though he had been detained in terms of an order made under subsection (1) of section 21.
44. ......................................................................................................................................................
45. 41. (1) Any police officer may arrest, without warrant, any person if he reasonably suspects that such person:
46. a) has acted or is about to act in a manner prejudicial to:
47. (i) the public safety; or
48. (ii) the maintenance of public order; or
49. (iii) the maintenance of any essential service; or
50. (iv) the preservation of the peace; or
51. (v) the termination of the state of emergency; or
52. (b) has committed or is about to commit any offence under any other law; and may detain any such person for a period not exceeding thirty days.
53. (2) Any person who is detained in terms of subsection (1) shall be deemed to be in lawful custody.
54. 34. In several previous cases in which it was alleged that trade union officers or members had been preventively detained, the Committee has pointed out that measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and especially the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee wishes to make certain observations concerning sections 21, 24 and 41 of the Emergency Powers (Maintenance of Law and Order) (No. 2) Regulations, 1968, in the light of this principle.
55. 35. The grounds on which persons may be detained or arrested under sections 21 and 24 are expressed in such wide terms that it appears to the Committee that the sections give the Minister and the police, respectively, almost total discretion to order the detention of and to arrest any person. The powers granted to the police by section 41 also seem to be equivalent to the power to arrest arbitrarily. Consequently, it would appear to be impossible to challenge a detention or arrest before the courts. In any case, the Committee has noted sections 21 (4), 24 (4) and 41 (2), which provide that any person detained or arrested under those sections is deemed to be in lawful custody. These provisions would similarly appear to preclude appeals to the courts against detention, as well as any redress in the form of damages for wrongful detention. The only appeal against the detention order made under section 21 would, therefore, be a representation to the Minister which, in accordance with section 46, he " shall consider ".
56. 36. In view of these exceptionally wide powers of arrest and detention and the apparent absence of any judicial safeguards, and noting that, in violation of the principle set out in paragraph 34 above, it would not appear to be the policy of the authorities to ensure that persons detained under the emergency measures receive a trial, the Committee must express its concern at the risk of violation of trade union rights inherent in the provisions of sections 21, 24 and 41 of the Emergency Powers (Maintenance of Law and Order) (No. 2) Regulations, 1968.
57. 37. The Committee therefore recommends the Governing Body:
58. (a) to note that it has before it allegations that 168 trade unionists, whose names are given in paragraph 26 above, are detained in Southern Rhodesia;
59. (b) to reaffirm the right of all detained persons to receive a fair trial at the earliest possible moment;
60. (c) to note that the regulations under which the persons in question are alleged to be detained give the Minister and the police, respectively, almost total discretion to order the detention of and to arrest any person, and appear to preclude appeals to the courts against detention as well as any redress in the form of damages for wrongful detention;
61. (d) to note that the Government of Southern Rhodesia, when stating before the illegal declaration of independence that the allegations were groundless as the persons mentioned were not detained for trade union activities but for subversive activities in no way connected with trade unionism, gave no more specific reasons for the alleged detentions and other restrictions;
62. (e) to record its concern at the risk, inherent in these facts, of grave and continuing violation of the principle of fair trial for all detained persons proclaimed by the Universal Declaration of Human Rights and of the international obligation, accepted with the agreement and on behalf of the Government of Southern Rhodesia in 1950, to guarantee by appropriate measures " the rights of employers and employed alike to associate for all lawful purposes ".
63. Allegations relating to Restrictions on Trade Union Meetings
64. 38. In its communication of 29 June 1967, the W.F.T.U, in addition to formulating allegations concerning detentions, claimed that there is a ban on trade union meetings, apparently under the emergency regulations and the Law and Order (Maintenance) Act.
65. 39. The Committee recalls that, in a previous case relating to the United Kingdom in respect of Southern Rhodesia (Case No. 298), it had to examine allegations concerning police control over trade union meetings. Following amendment of the relevant legislation the Law and Order (Maintenance) Act-in 1963, and the receipt of the Southern Rhodesian Government's comments, the Committee noted, at its session in February 1964, that, in the case of meetings attended by less than 200 persons, it seemed that trade unions were not required to obtain prior authorisation and that the power of the authorities to call for advance notification of the agenda of such meetings and the names of the intended speakers seemed to be a mere formality, since it did not imply that other matters might not be discussed or other persons allowed to speak (see 74th Report, paragraph 38). The Committee noted, however, that meetings attended by over 200 persons, whether held in a public or private place, were automatically classified as public meetings, at which the police were empowered to be present and to record the proceedings (74th Report, paragraph 39). The Committee pointed out that the right of trade unions to hold meetings freely on their own premises, without the need for prior authorisation and without control by the public authorities, constitutes a fundamental element in freedom of association. It also reaffirmed, as it had already done on other occasions and as had also been done by the Committee of Experts on the Application of Conventions and Recommendations, that the presence of members of the police at trade union meetings may constitute an " interference " from which, under the provisions of Article 3, paragraph 2, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), " the public authorities shall refrain ". Lastly, the Committee noted that, on Sundays and holidays, only meetings held by unregistered trade unions were subject to supervision when attended by more than 200 persons, the Government having stated that the object of this provision was to encourage trade unions to apply for registration (74th Report, paragraph 43). The Committee observed that, while it was legitimate for registration in certain circumstances to involve advantages in regard to certain matters in the field of industrial relations, it should not in normal circumstances involve discrimination of such a character as to render non-registered organisations subject to special measures of police supervision which might restrict the exercise of freedom of association. The hope was accordingly expressed that these restrictions on the holding of trade union meetings and the distinctions between registered and non-registered trade unions would soon be removed (74th Report, paragraphs 45 and 46).
66. 40. With regard to the powers granted to the responsible minister and to the police by the Law and Order (Maintenance) Act, as amended, concerning which the Committee had made certain recommendations in Case No. 298 (see preceding paragraph), the Committee, while recalling that, as indicated in paragraph 30 above, the provisions of that Act have been superseded in fact by the emergency regulations, notes that these powers do not appear to have been modified in the way suggested by the Committee in Case No. 298 and that they are still available to the authorities.
67. 41. Without expressing an opinion on the Constitutional validity of the legislation and regulations adopted in Southern Rhodesia since November 1965-a question which, as indicated in paragraph 30 above, is not within the Committee's competence-the Committee has now taken note of section 16 of the Emergency Powers (Maintenance of Law and Order) (No. 2) Regulations, 1968, which reads as follows:
68. (1) A protecting authority may by order prohibit:
69. (a) all gatherings; or
70. (b) any particular gathering, or gatherings of a particular class, specified in the order; in the area or in any portion of the area.
71. (2) A protecting authority may at any time call upon the person who appears to be in charge of or addressing any gathering to bring the gathering to an end.
72. A " protecting authority " is a commissioned officer of police appointed to be in charge of a specified area in Rhodesia for the purposes of dealing with the maintenance of law and order. In section 16 (2), the term also includes " a police officer of or above the rank of patrol officer " (section 16 (5)). The term " gathering " is used in the Regulations to mean a gathering of three or more persons (section 2).
73. 42. In the absence of an explanation from the authorities on the use made of section 16 of the Regulations-as well as of the narrower powers granted to the Minister and the police by the Law and Order (Maintenance) Act, as amended (see paragraphs 39 and 40 above)-the Committee cannot form a final opinion on the allegations relating to restrictions on trade union meetings. It considers, however, that it must express its concern at the risk of violation of the right of trade unions to hold meetings on their own premises, which is inherent particularly in the wide powers granted to the police by section 16 of the Regulations.
74. 43. The Committee accordingly recommends the Governing Body:
75. (a) to reaffirm that the right of trade unions to hold meetings freely on their own premises, without the need for prior authorisation and without control by the public authorities, constitutes a fundamental element of freedom of association;
76. (b) to note that the hope expressed by the Committee in February 1964 that restrictions upon this right would soon be removed has not been fulfilled, but that, on the contrary, the regulations now being applied appear to give the police a general power to prohibit or terminate trade union meetings held on trade union premises;
77. (c) to record its concern at the risk, inherent in these facts, of grave and continuing violation of the principle of freedom to hold trade union meetings on trade union premises and of the international obligation, accepted with the agreement and on behalf of the Government of Southern Rhodesia in 1950, to guarantee by appropriate measures " the rights of employers and employed alike to associate for all lawful purposes ".
78. Allegations relating to the Provisions of the Industrial Conciliation Act, 1959
79. 44. These allegations, which relate to the registration of trade unions under the Industrial Conciliation Act, 1959, and to the organising rights of agricultural workers and domestic servants, have already been considered by the Committee on several previous occasions.
80. 45. The registration issue was considered in detail by the Committee at its meeting in May 1965. On that occasion, the Committee, while noting that legislation then newly adopted provided for an appeal to the Industrial Court in all cases where the registration of a trade union was refused by the Industrial Registrar-this issue having originally been the subject of one of the allegations in the case-recalled the provisions of section 37 (1) (b) and (c) of the Industrial Conciliation Act, in accordance with which the registration of an organisation has to be refused unless the Registrar is satisfied, inter alia, that its Constitution does not contain provisions which are contrary to any law or are calculated to hinder the attainment of the objects of any law or are not in the interests of the effective functioning of the trade union concerned or are contrary to the public interest, and that the organisation is a responsible body and reasonably capable of taking part in the negotiation of matters of mutual interest between employer and employee in accordance with the provisions of that Act. The Committee pointed out, in paragraph 98 of its 83rd Report, that the question as to whether the particular requirements laid down are fulfilled is one upon which the Registrar has to form his own judgment, and drew attention to the fact that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations had observed that, in such cases, " the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal ... would only be able to ensure that the legislation had been correctly" applied". It accordingly recommended the Governing Body, in paragraph 111 (a) (ii) and (iii) of its 83rd Report:
81. (ii) to draw the attention of the Government once again, having regard to the observations of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not;
82. (iii) to suggest to the Government that consideration be given to further amending the Industrial Conciliation Act, 1959, so as to give full effect to the principle set forth in the preceding subparagraph, and to request the Government to be good enough to keep the Governing Body informed of any further developments in this connection.
83. 46. With regard to the situation of agricultural workers and domestic servants, the Committee recalled, in paragraph 103 of its 83rd Report, that in 1961 the I.L.O. Committee of Experts in an observation had noted with regret that the Industrial Conciliation Act, 1959, by virtue of section 4 (2) (a) thereof, did not apply to " persons in respect of their employment in farming operations (including forestry) or any domestic servants in private households " and had stated that it would be glad if the Government would indicate the measures which it was proposed to take to guarantee the right of these workers " to associate for all lawful purposes ", as required by the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), which applies to all employed persons. The Committee recalled also that, during the 45th (1961) Session of the International Labour Conference, a representative of the Government of Southern Rhodesia, intervening at the request of the representative of the Government of the United Kingdom, had stated before the Conference Committee on the Application of Conventions and Recommendations that the question of including agricultural workers and domestic servants within the Industrial Conciliation Act would be further considered in the light of the Committee of Experts' observations. The Committee went on to observe, in paragraph 109 of its 83rd Report, that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations in March 1965 had noted with regret that, although the Act had been the subject of extensive amendments, no measures had been taken to extend its scope to persons engaged in farming operations or to domestic servants, and that the Government merely proposed to study this question.
84. 47. It accordingly recommended the Governing Body, in paragraph 111 (b) (i) and (ii) of its 83rd Report:
85. (i) to draw the attention of the Government once again to the fact that, in undertaking to apply the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), without modification to Southern Rhodesia, it has assumed the obligation under Article 2 of that Convention to guarantee the right of all employed persons " to associate for all lawful purposes ";
86. (ii) to request the Government again-having regard to the observations made in 1961 and 1965 by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations... and to the statement of the Government representative to the Conference Committee on the Application of Conventions and Recommendations in 1961 that the question of the inclusion of agricultural workers and domestic servants within the scope of the Industrial Conciliation Act, 1959, would be further considered in the light of the observations of the Committee of Experts - to indicate what measures it is proposed to take to give full effect to Article 2 of the said Convention in respect of these categories of workers.
87. 48. At its meeting in February 1966, having taken note of information supplied by the Government of the United Kingdom, at the request of the Government of Southern Rhodesia, to the effect that the time was not considered opportune for amending the Industrial Conciliation Act as suggested by the Governing Body, that agricultural workers and domestic servants were not denied the right " to associate for all lawful purposes " and that at that stage the protection of the Act was considered unnecessary, the Committee expressed its regret, in paragraph 76 of its 87th Report, that the Government of Southern Rhodesia should have requested the Government of the United Kingdom to convey this intimation, having regard particularly to the statements of the representative of the Government of Southern Rhodesia to the Conference Committee on the Application of Conventions and Recommendations in 1961, referred to in paragraph 46 above.
88. 49. At the same session in February 1966, however, having regard to the recent political events in Southern Rhodesia and to the contents of the communication dated 7 February 1966 from the Government of the United Kingdom, the Committee, while reaffirming the considerations set forth in paragraph 111 of its 83rd Report (cited in paragraphs 45 and 47 above), did not consider that any useful purpose would be served by pursuing the matter further at that stage, but recommended the Governing Body to request the Government of the United Kingdom to be good enough to keep the Governing Body informed of further developments in the matter (see 87th Report, paragraph 76).
89. 50. The Committee notes that, since it last examined the case, the Industrial Conciliation Act, 1959, has been further amended by the Industrial Conciliation Amendment Act, 1967, and the Industrial Conciliation Amendment (No. 2) Act, 1967, but that neither of these Acts affects the questions raised in the allegations. The situation relating to these questions therefore appears to be unchanged.
90. 51. Accordingly, the Committee recommends the Governing Body to reaffirm the considerations set forth in paragraph 111 of its 83rd Report (cited in paragraphs 45 and 47 above).