Rapport définitif - Rapport No. 74, 1964

1. 25. The original complaint of the African Trades Union Congress of Southern Rhodesia (A.T.U.C.S.R.) is contained in four communications addressed directly to the I.L.O on 15 May, 21 May, 23 May and 13 August 1962. The Government furnished its observations on the first three communications by a letter dated 7 August 1962.
2. 26. These documents were before the Committee when it examined the case at its - meeting in October 1962 and submitted to the Governing Body the conclusions contained in paragraphs 510 to 550 of its 66th Report, which was approved by the Governing Body on 8 November 1962, in the course of its 153rd Session.
3. 27. In that report the Committee submitted its definitive report to the Governing Body with regard to certain allegations relating to restrictions imposed by the Industrial Conciliation Act, 1959, on the right of trade unions freely to draw up their own Constitutions and rules, to the denial of the right of association to certain classes of workers, to restrictions imposed on the right to hold trade union meetings and to industrial inspectors. It submitted an interim report with regard to other allegations relating to the utilisation of the Law and Order (Maintenance) Act to restrict trade union activities and to the suppression of a strike called on 14 May 1962, concerning which it requested the Government to furnish further information.
4. 28. Since that time two further communications have been addressed to the I.L.O by the African Trades Union Congress of Southern Rhodesia-the first consisting of a copy of a letter which it addressed to the Industrial Registrar on 30 November 1962, the second being a letter addressed to the I.L.O on 13 February 1963. The International Confederation of Free Trade Unions submitted a complaint to the I.L.O on 7 December 1962.
5. 29. By a communication dated 10 May 1963, the Government of the United Kingdom furnished further information, as requested by the Committee, on the outstanding allegations referred to in paragraph 27 above, together with its observations on the later communications mentioned in paragraph 28 above.
6. 30. The case came before the Committee again at its May 1963 session, and the Committee then submitted to the Governing Body the conclusions to be found in paragraphs 327 to 376 of its 70th Report, which was adopted by the Governing Body on 1 June 1963, in the course of its 155th Session.
7. 31. In that report, the Committee submitted to the Governing Body its final conclusions concerning the allegations relating to the utilisation of the Law and Order (Maintenance) Act and of the Unlawful Organisations Act to restrict trade union activities. It submitted an interim report on the allegations relating to restrictions imposed on the right to hold trade union meetings, suppression of the strike called on 14 May 1962 and preventive detention, in relation to all of which it asked the Government to supply additional information. This the Government did in a communication dated 22 January 1964. The following paragraphs relate solely to the allegations still pending.
8. 32. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has accepted the provisions of that Convention for Southern Rhodesia without modification, on behalf and with the consent of the Government of Southern Rhodesia. The Government of the United Kingdom has also 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), but has reserved its decision concerning the application of these Conventions in Southern Rhodesia.

A. A. The complainants' allegations

• Allegations relating to Restrictions Imposed on the Right to Hold Trade Union Meetings
  33. 33 In paragraphs 529 to 537 of its 66th Report the Committee examined allegations to the effect that under the Law and Order (Maintenance) Act prior permission is necessary to hold a meeting, that police officers attend and interfere with meetings and that local authorities demand excessive deposits as security when meetings are held. The Committee recommended the Governing Body to decide that such part of the allegations as related to renting conditions imposed by local authorities did not call for further examination, but, with respect to the other aspects of the allegations, to draw the attention of the Government to the fact that the presence of police officers at trade union meetings may be considered as an interference, from which the public authorities should refrain, with the right of trade unions to hold meetings in freedom.
  34. 34 Subsequently, as noted by the Committee in its 70th Report, the African Trades Union Congress of Southern Rhodesia furnished further information on these matters, and the Committee therefore had to consider whether any new elements were adduced therein of a nature to cause the Committee to reopen or examine further an aspect of the case which otherwise would have been regarded as closed. The Committee considered that the additional evidence adduced with regard to the conditions governing the leasing of premises for union meetings did not add any really new elements to those mentioned in paragraph 532 of its 66th Report, on the basis of which the Committee had concluded that this aspect of the matter did not call for further examination. The Committee, therefore, considered it unnecessary to reopen this question.
  35. 35 The Committee considered, on the other hand, that the position with regard to the extent to which private meetings of trade unions might be subject to restriction was not clear. The A.T.U.C.S.R maintained that in 1962 its conferences and even its general council meetings, which it described as private members' meetings, had been subject to the requirement of permission by the authorities, to furnishing the names of the speakers and the agenda, and to allowing tape recorders to be placed where they were held. Even the Government, in its own communication, referred without further comment to a statement by a union organising secretary that permission for a union meeting had been withheld because the agenda and nominated speakers were likely to be changed. The Committee found that these restrictions, if indeed they were applied to private trade union meetings, would seem to be incompatible with the generally recognised right of trade unions to hold meetings in freedom. The fact that the presence of police officers at trade union meetings might also be an interference with this right had been drawn to the Government's attention by the Governing Body when it adopted the 66th Report of the Committee. The Committee noted, however, that the Government now referred to a new law-the Law and Order (Maintenance) Amendment Act, 1963-and stated that the limited control which had applied for a relatively short period had now been abolished, but did not specify just to what control reference was made.
  36. 36 In these circumstances, having regard to the new legislation mentioned by the Government, the Committee requested the Government to state whether private trade union meetings, conferences, council and committee meetings were subject to permission by the police or other authorities and liable to be attended by police, whether their agendas and speakers had to be announced in advance so that other items of trade union interest could not be added to the agenda and other persons allowed to speak, subject to union rules, and whether the proceedings had to be recorded by tape recorders. In view also of the Government's reference to the fact that control did not apply to meetings of unregistered trade unions attended by 200 persons or less, the Committee, having regard to the fact that registration, though attended by advantages, was not compulsory, so that bona fide organisations might choose not to register, asked the Government to explain why a distinction was apparently made with regard to the freedom of meeting of such organisations.)
  37. 37 In the observations it made in its communication dated 22 January 1964, the Government states that the authorities (in this case the senior police officer or the district commissioner) are not empowered to require an application for prior authorisation to hold a meeting; they only have the power to issue directions for the control of meetings. Any directions issued are in no sense a permit; hence the authorities have no power to prohibit a meeting from being held. When directions are issued requiring advance notification of the agenda of a proposed meeting and of the names of the intended speakers, such directions do not state or imply that no other items may be added to the agenda or that no other persons may be allowed to speak.
  38. 38 From the Government's explanation it would seem, first, that to hold a meeting the unions are not required to obtain prior authorisation from the authorities and, secondly, that directions issued by the authorities with regard to a meeting are tantamount to a mere formality, since the notification of the agenda and the list of speakers does not imply that items not on the agenda may not be discussed or that speakers not on the list will not be allowed to speak.
  39. 39 The situation with regard to meetings attended by over 200 persons is more debatable. In this connection the Government states that private trade union meetings (whether the union is registered or not) are, if attended by over 200 persons, automatically classified as public meetings, whether held in a public or private place and whether confined to members or not. In that event, the Government continues, directions may be issued not only requiring advance notification of the agenda and the names of the intended speakers but also to permit the police to be present and to record the proceedings.
  40. 40 As the Committee had pointed out in its 66th Report, the right of trade unions to hold meetings freely on their own premises, without the need for previous authorisation and without control by the public authorities, constitutes a fundamental element in freedom of association.
  41. 41 In the existing situation in Southern Rhodesia, as described by the Government, which recognises that not only do members of the police attend trade union meetings but that they record all that is said at such meetings by means of tape recorders, the Committee affirms once more, 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 Convention No. 87, " the public authorities shall refrain ".
  42. 42 Consequently the Committee recommends the Governing Body to draw the Government's attention once more to the fact that the presence of police officers at trade union meetings may be considered as an interference, from which the public authorities should refrain, with the right of trade unions to hold meetings in freedom.
  43. 43 In reply to the Committee's request for explanations with regard to the distinction made, as regards meetings held on Sundays and holidays, between meetings of registered organisations and meetings of organisations that are not registered (see paragraph 36 above), the Government states that the object is "to encourage unregistered trade unions to apply for registration ".
  44. 44 It would seem that when a trade union meeting is held on a Sunday or holiday, only meetings held by unregistered organisations are subject to supervision when the number of those attending exceeds 200.
  45. 45 As the registration of trade unions is not compulsory in Southern Rhodesia, this situation would seem to call for certain observations on the part of the Committee. While recognising that it may be legitimate for registration, in certain circumstances, to confer advantages on a trade union organisation in respect of such matters as representation for the purposes of collective bargaining, consultation by governments, or the nomination of delegates to international bodies, 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 of a nature which may restrict the exercise of freedom of association. At the same time, the Committee appreciates that the measures of police supervision in question are applied in Southern Rhodesia, pursuant to special legislation designed to preserve public order in a situation of political unrest, and that certain of the restrictions originally imposed by the Law and Order (Maintenance) Act have been eased.
  46. 46 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principles enunciated above and to express the hope that the Government will soon find it possible to remove the remaining restrictions imposed with respect to the holding of trade union meetings and the distinction made between meetings of registered trade unions and meetings of non-registered trade unions.
• Allegations relating to the Suppression of the Strike Called on 14 May 1962
  47. 47 After noting that two persons involved in the strike of 14 May 1962 lost their lives as a result of shots fired by the police, the Committee, when it considered this aspect of the case at its October 1962 session, emphasised the importance of holding a special inquiry to determine the justification and responsibility for the action taken by the police, and it requested the Government to communicate the results of such inquiry.
  48. 48 When the matter was submitted to it again at its May 1963 session, the Committee noted that in its communication of 10 May 1963 the Government stated that the two persons concerned had lost their lives on 14 May 1962 when police were suppressing public violence during the strike in Salisbury. The Government stated that on 6 and 27 August 1962 magistrates in Salisbury had conducted inquests, and that verdicts of death due to gunshot wounds had been brought in. Under the Inquests Act, 1951, as amended, it was the duty of a magistrate to transmit to the Attorney-General the record of every inquest, and this had been done. The Attorney-General had decided that no criminal proceedings could ensue.
  49. 49 In its 70th Report the Committee observed that the only new information before it, in response to its request, was the fact that the inquests had confirmed that the two persons concerned had actually been shot. No special inquiry appeared to have been held of the type referred to by the Committee in paragraph 544 of its 66th Report. However, in view of the fact that the records of the inquests referred to by the Government might be of assistance to the Committee not only in judging for itself the circumstances in which the two persons concerned had lost their lives but also in formulating its conclusions on the allegations relating to the strike itself, the Committee requested the Government to be good enough to furnish copies of such records.
  50. 50 In its observations dated 22 January 1964 the Government, after repeating that the strike was not in furtherance of a trade dispute, states that in its view the Committee's request to be furnished with copies of the records of the inquests is exorbitant in that it reflects on the integrity and independence of the judiciary in Southern Rhodesia. The Government accordingly refuses to comply with the request.
  51. 51 The Committee wishes to emphasise that, when it requests a government to furnish records of judicial proceedings, such a request does not reflect in any way whatsoever on the integrity or independence of the judiciary. The essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known. Further, as the Committee pointed out in an earlier case, the fact of its requesting that the text of a judicial decision be communicated to it, far from being a singular proceeding, is a normal practice to which the Committee has recourse in order to assess fully the facts contested in a complaint. The Committee has repeatedly requested governments to furnish information as to judicial proceedings and the results of such proceedings, and must repeat that its sole purpose in doing so is to enable it to formulate its conclusions in full knowledge of all the circumstances, which it considers itself unable to do unless all the material elements of the case are before it.
  52. 52 In these circumstances, the Committee recommends the Governing Body to express its keen regret that the Government has not seen fit to furnish the records of inquest proceedings requested by the Committee.
• Allegations relating to Preventive Detention
  53. 53 In connection with this case the Committee had considered allegations concerning the preventive detention of a number of officers of the African Trades Union Congress of Southern Rhodesia. The Committee has already submitted its final conclusions on most of the individual cases that were brought to its notice.
  54. 54 However, two persons, Messrs. Mswaka and Mafuka, appealed against conviction of having incited workers to continue an unlawful strike, and the Committee had requested the Government to inform it in due course as to the outcome of the appeals which these persons had instituted.
  55. 55 In its communication dated 22 January 1964, the Government states that on 20 May 1963 the High Court set aside the conviction and sentence of the lower court. The persons concerned are therefore no longer under sentence.
  56. 56 In these circumstances the Committee recommends the Governing Body to note that Messrs. Mswaka and Mafuka have been liberated by the High Court.