Rapport intérimaire - Rapport No. 376, Octobre 2015

1. 957. The complaint is contained in the joint communication of the Federation of Somali Trade Unions (FESTU) and the National Union of Somali Journalists (NUSOJ) dated 28 December 2014, supported by the International Trade Union Confederation (ITUC) in a communication of 17 February 2015.
2. 958. The Government sent its observations in a communication dated 11 May 2015.
3. 959. The Federal Republic of Somalia 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. 960. In their communications dated 28 December 2014, and 17 February 2015, the complainant organizations allege serious threats, acts of intimidation and reprisals against members and leaders and the lack of adequate responses by the Federal Government of Somalia.
2. 961. By way of background, the complainants recall that Somalia joined the ILO in 1960 and therefore accepted the fundamental principles embodied in the ILO Constitution and the Declaration of Philadelphia, including the principles of freedom of association. In March 2014, the Federal Government of Somalia ratified Conventions Nos 87 and 98, and its Prime Minister, Mr Abdiweli Sheikh Ahmed Mohamed, emphasized that the “Government is fully committed to institutionalizing tripartite dialogue” and that “trade unions aspire to participate in the social and economic policy-making processes. Their voices need to be heard in national social dialogue as they call for a fair environment where they enjoy equal opportunities.” The complainants also refer to article 16 of the Provisional Constitution of the Federal Republic of Somalia on freedom of association and article 24 of the same text on labour relations, including: (i) the right to fair labour relations; (ii) the right to form and join a trade union and to participate in the activities of a trade union; (iii) the right to strike; and (iv) the right of trade unions, employers’ organizations or employers to engage in collective bargaining regarding labour-related issues.
3. 962. The complainants explain that FESTU and NUSOJ leaders and officials as well as their members are facing regular abuses and violations of freedom of association and trade union rights by the Government. Freedom of association continues to be grossly, systemically and systematically violated in Somalia. As a result of this denial, workers in general and union members in particular, suffer the loss of voice and representation in workplaces and on issues affecting their interests and well-being. Government authorities have been undermining the independence, credibility, integrity and legitimacy of the trade union movement. Somali union members and leaders, in particular those of FESTU and the NUSOJ, have suffered varying degrees of persecution, harassment and intimidation by government agencies, including frequent arbitrary arrests and interrogations of trade unionists. FESTU and the NUSOJ are therefore demanding the respect and enjoyment of their right to freely organize, represent and associate.
4. 963. In particular, while documenting their allegations with various government letters, the complainants mention the following facts and legal obstacles.
5. 964. Trade union activities: The Ministry of Information, Posts and Telecommunications (referred to hereinafter as the Ministry of Information) has interfered in the NUSOJ’s right to carry out peaceful trade union activities with the legitimate purpose of defending the occupational interests of its members. In November 2014, the Ministry of Information stopped a two-day conference organized by the NUSOJ to mark the International Day to End Impunity for Crimes against Journalists. Just as participants reported and began registering for the conference, the Minister of Information, Mr Mustaf Sheikh Ali Dhuhulow, through the National Intelligence and Security Agency Mogadishu Branch, ordered an immediate halt to the activities, citing the presence of “foreigners” at the activities as a security threat and that the meeting had not been approved by the Ministry of Information. However, all procedures had been followed with regard to the attendance of two international representatives of the African Freedom of Expression Exchange (AFEX). Furthermore, the Ministry of National Security approved the arrival of the delegation, following the NUSOJ’s formal request, and wrote to the Directorate of Immigration and Nationalities, requesting that visas be issued for the two. On 1 November 2014, the Deputy Minister of Information, Mr Abdullahi Olad Roble, held a press conference in which he referred to the presence of the two AFEX representatives in Somalia as “illegal” and that they had instructed security authorities to investigate them.
6. 965. Arbitrary interrogation of trade unionists: On 7 September 2014, Mr Omar Faruk Osman, General Secretary of FESTU and the NUSOJ, was summoned by the Attorney General who informed him that he and other union officials would face charges under the Penal Code, including “supplying information to a foreign power” and “undermining the integrity and reputation of the government.” Ultimately, no charges were brought against the trade unionists, though the threat of prosecution had a chilling effect on the unions. Earlier in November 2011, armed police, without any warrant, raided the NUSOJ’s offices and arrested NUSOJ organizing secretary Abdiqani Sheik Mohamed. He was interrogated by police and the Criminal Investigations Directorate (CID), but was finally released and warned that police would continue criminal investigations against the union without specifying any grounds. Trade unionists, members of Parliament and civil society protested at the CID against the systematic arbitrary interrogation of NUSOJ representatives in retaliation for exercising their legal and legitimate rights.
7. 966. Threats: The Government has not taken adequate measures to ensure that workers can exercise their rights in a climate that is free from violence, pressure or threats of any kind against union members. From 2 to 19 September 2013, death threats and intimidation against executive committee members of FESTU increased rapidly. Dates and times of the threats, names of targeted trade union officials and messages delivered to the union leaders were submitted to the CID, which failed to investigate the threats. FESTU believes that hired militias who use contract killings in the capital city were hired as mercenaries. On 28 September 2013, about three hours ahead of a meeting scheduled by FESTU with ten affiliated unions about the increase of intimidation and death threats, a bomb was found to be buried at the entrance of FESTU’s office. This was reported to the police who came and removed the bomb but made no effort to investigate who may have planted it.
8. 967. Travel restrictions against trade unionists: Mr Omar Faruk Osman, General Secretary of the NUSOJ and FESTU, had been invited by the Ministry of Labour and Social Affairs to attend the Arab Labour Conference in Cairo as a Worker representative. However, Mr Omar Faruk Osman was stopped by immigration officials when he attempted to board the plane to Cairo on 12 September 2014. He was told that the Office of the Attorney General had issued an arrest warrant against him but could not be provided with written proof. Finally, the office denied issuing an arrest warrant and informed the immigration department that Mr Omar Faruk Osman was free to travel.
9. 968. Interference in internal union affairs: The Ministry of Information made defamatory statements about the democratically elected General Secretary of the NUSOJ in order to undermine the findings of the report “Lives and Rights of Journalists under Threat.” On 24 January 2012, the Ministry of Information issued a press statement falsely claiming that Mr Omar Faruk Osman had been removed from his post “for mismanagement and misappropriation of funds” and that the interim leadership of the NUSOJ “brought a court case” against him. These accusations are unfounded in their entirety and are clearly intended to mislead the public and to undermine the credibility of the report. Mr Osman has been the General Secretary of the NUSOJ since 2006 and there has never been a court case against him for misappropriating union funds. In any case, the right to freedom of association implies that unions have the right to decide for themselves the rules which should govern their administration, including the rules concerning eligibility for union office. Any internal disputes should be resolved on the basis of the union’s own constitution and without interference from public authorities.
10. 969. Recognition of NUSOJ union leaders: The Ministry of Information refuses to recognize the democratically elected leadership of the NUSOJ with Mr Omar Faruk Osman as its General Secretary and propels a puppet in order to undermine credibility and integrity of the union. The Ministry had written letters to legalize puppet leadership when it has no legal entitlements to do so. The NUSOJ, like any other trade union, shall receive such recognition as a legal trade union from the Ministry of Labour, according to the Labour Code, not from the Ministry of Information. The Ministry of Information must therefore refrain from interfering in the internal affairs of the NUSOJ, imposing someone outside as union leaders in particular when the objective is to trample on the right to freedom of speech.
11. 970. Inadequacy of Somalia legal framework: Somalia legal framework is extremely inadequate when it comes to the guarantee of the right to freedom of association. In fact, the labour law imposes serious obstacles on trade unions. The right to freedom of association is entrusted in the Provisional Constitution of the Federal Republic of Somalia, and in Part II of the Labour Code of 1972, which imposes limitations on the freedom of choice of trade union structure, the right to draw up constitutions and rules, and the right to elect representatives in full freedom, the right to freely organize activities and formulate programmes as well as on the subjects covered by collective bargaining. The Labour Code also imposes excessive requirements for the establishment of unions and allows for the dissolution and suspension of trade unions.
12. 971. In particular, Somali legislation infringes workers’ rights to freely determine the structure and composition of their union. Workers should have the right to form unions consisting of workers from different workplaces and cities. However, section 10 of the Labour Code provides that workers may establish unions “in the same occupation, trade or industry.” Section 19 of the same text establishes that trade unions may appoint committees in accordance with the provisions of their constitutions or rules “Provided that persons so appointed shall … be those who are actually working in the same occupation or trade or in related occupations or trades.” These provisions imply that workers employed in different occupations and sectors may not establish and join the same union and therefore impede on the right of workers to decide on the composition of their union freely.
13. 972. The minimum legal requirement for the number of founding members of a union is excessively high and poses a considerable hindrance to the unionization of workers. Section 10 of the Labour Code provides that a union shall have a minimum of 50 members. At the same time, Somalia’s economy is by and large informal and the majority of the population is engaged in small-scale businesses. Thus, large parts of the workforce are unable to meet this requirement given the structure of the Somali labour market and are therefore excluded from the right to freedom of association at their workplace.
14. 973. Legal provisions allow for interference in the internal administration of unions and exceed the obligation to submit periodic reports to public authorities. Section 13 of the Labour Code requires union rules to include a clause that would allow the inspection of the books and names of members by every person having an interest in its funds. This provision leaves a wide discretion to public authorities to carry out inspections and request information at any time constituting a risk for the guarantee of the right to organize their internal administrations without any constraints.
15. 974. The law allows the Government to interfere in the functions of trade unions. Section 17 of the Labour Code specifically provides that the functions of unions shall include, “facilitating the normal performance of state enterprises and participation of workers in the planning and management of such enterprises; and ensuring increase of production and labour discipline.” This provision restricts workers’ rights to freely organize activities as it imposes certain goals which can prevent unions from defending the interests of their members by obliging them to reinforce the country’s political and economic systems.
16. 975. Section 27 of the Labour Code provides that the Government has the power to dissolve any trade union, the activities of which are considered to be detrimental to the interests of the workers or against the spirit of the revolution. This means that it is the Government that has the competence to dissolve a union instead of an independent and impartial judicial body and that unions are deprived of their right of defence through due process of law. By making the existence of unions conditional on their level of conformity with the broad concept of “the spirit of the revolution”, the legislation prevents the development of free and independent trade unions that are able to challenge socio-economic policies without the threat of dissolution.
17. 976. Finally, the legislation provides restrictions on the scope of issues that can be negotiated through collective bargaining. Section 32(2) of the Labour Code provides that the contents of a collective labour agreement shall take into account the State’s revolutionary social policy, the role of trade unions and the responsibility of workers for increasing in every possible way the national production and their participation in the planning and management of national economy. Section 33(j) specifies that collective agreements shall specify measures promoting workers participation in the management of the undertaking. According to section 42(1), employment relationships governed by decisions of a public authority in accordance with law shall not be subject to regulation by collective labour agreement. The employment relationship can only be regulated through “special collective agreements” which are tripartite and it is the Ministry of Labour that has the right to take initiative and consult with workers and employers. The employment relationship can have serious implications on the working conditions of workers and thus the exclusion of this issue from collective bargaining negotiations seriously infringes the rights of workers.
18. 977. The Labour Code was adopted in 1972 during the military dictatorship of President Siad Barre. It is evidently largely insufficient to protect the right to freedom of association of workers and to establish sound industrial relations in Somalia. Numerous sections explicitly interfere in fundamental rights and must be amended.
19. 978. In conclusion, the complainants note that although the Government claims to be committed to tripartism and to recognize the importance of the right to freedom of association for the socio-economic development of Somalia, both practices and laws contradict these promises and perpetuate the systematic violation of the rights of Somali union members and leaders.
20. 979. They call the Committee to urge: (i) the Ministry of Information to recognize the democratically elected leadership of the NUSOJ, including current General Secretary Mr Omar Faruk Osman, and cease any interference in the internal affairs of the union; (ii) the Government to cease arbitrary travel restrictions against the NUSOJ and the FESTU leadership in order to exercise the right to freedom of movement, and to end halting of meetings organized by trade unions so that union members and leaders enjoy the right to freedom of assembly; (iii) the security authorities to end their practice of arbitrary arrests, intimidations and interrogations, and to ensure that trade unionists under investigation have access to their due process rights; and (iv) the Government to investigate and punish threats and attacks against trade unionists; and to amend the legislation in consultation with the social partners to guarantee that it provides adequate protection for the right to freedom of association.

B. The Government’s reply

1. 980. In its communication dated 11 May 2015, the Government indicates that certain government officials transgressed their duties, infringed freedom of association and assembly and interfered into internal trade union activities of the NUSOJ and FESTU, creating problems for union members and obstructing trade union work and independency. The Government is aware of obstruction of journalist union meetings by security agents and the Ministry of Information in November 2014.
2. 981. According to the Government, the ILO must be cognizant that for a labour union to exist lawfully in Somalia it must be allowed and approved by the line Federal Ministry. By this, the NUSOJ leadership must be approved by the Ministry of Information to operate officially. Anyone not accepted by the Ministry of Information is an illegal NUSOJ leader. In the same vein, FESTU top direction and operations must be allowed and approved by the Ministry of Labour and Social Affairs, without which it is an out of law organization and its actions are considered unlawful.
3. 982. The Office of the Attorney General and the CID have been pursuing Mr Omar Faruk Osman and his team for rebuking officials at the Ministry of Information and publicly claiming that they are the true leaders of the NUSOJ whereas their leadership is not recognized by the Ministry of Information. Such investigations and interrogations occasioned immigration authorities to decline Mr Omar Faruk Osman occasionally to travel abroad.
4. 983. Moreover, while the preceding Minister of Labour, Mr Luqman Ismail, and his Government had recognized FESTU under the leadership of Mr Omar Faruk Osman, the new Minister of Labour, Mr Abdiweli Ibrahim Sheikh, has decided to withdraw recognition and approval of Mr Osman’s leadership. The Minister is a policy-maker and the Ministry follows his decision.

C. The Committee’s conclusions

1. 984. The Committee notes that the complainants in this case allege serious threats, acts of intimidation and reprisals against members and leaders of the NUSOJ and the lack of adequate responses by the Federal Government of Somalia. While mentioning that freedom of association continue to be grossly, systemically and systematically violated in Somalia, the complainants mainly allege the following violations of freedom of association: (i) on 24 January 2012, the Ministry of Information made a defamatory statement about the General Secretary of the NUSOJ and the General Secretary of FESTU, Mr Omar Faruk Osman – this interference in NUSOJ internal affairs is still continuing as the Ministry of Information is refusing to recognize its democratically elected leadership and Secretary-General, and writing letters to recognize puppet leadership when it has no legal entitlements to do so; (ii) in September 2013, the members of the FESTU Executive Committee were subject to increased death threats and intimidation, but the Government did not investigate; (iii) in September 2014, Mr Osman and other NUSOJ representatives were subject to systematic arbitrary interrogations by the Attorney General, the CID and the police, and the immigration officials attempted to impose travel restrictions on Mr Osman; (iv) in November 2014, the Ministry of Information interfered in the NUSOJ's right to carry out peaceful trade union activities, in particular by stopping a two-day conference organized by the NUSOJ to mark the International Day to End Impunity for Crimes against Journalists; and (v) as regards legal obstacles to freedom of association and collective bargaining, the complainants allege that Somali legislation imposes excessive requirements for the establishment of unions and allows for the dissolution and suspension of trade unions, and in particular to sections 10, 13, 17, 32(2), 33(j) and 42(1) of the Labour Code.
2. 985. The Committee notes the observations sent by the Government mainly indicating that: (i) the Government is aware that certain government officials transgressed their duties, infringed freedom of association and assembly and interfered with the internal trade union activities of the NUSOJ and FESTU, creating problems for union members and obstructing trade union work and independency, in particular during the NUSOJ Conference of November 2014, which was obstructed by security agents and the Ministry of Information; (ii) given that labour unions must be allowed and approved by line federal ministries in order to exist lawfully in Somalia, the NUSOJ leadership must be approved by the Ministry of Information, while FESTU top direction and operations leadership must be allowed and approved by the Ministry of Labour and Social Affairs – otherwise they are considered illegal and their actions unlawful; (iii) in this regard, the Office of Attorney General and the CID have been pursuing Mr Osman and his team for rebuking officials at the Ministry of Information and publicly claiming that they are the true leaders of the NUSOJ whereas their leadership is not recognized by the Ministry of Information. Such investigations and interrogations occasioned immigration authorities to occasionally decline Mr Osman to travel abroad; and (iv) while the preceding Minister of Labour, Mr Luqman Ismail, and his Government had recognized FESTU under the leadership of Mr Osman, the new Minister of Labour, Mr Abdiweli Ibrahim Sheikh, in his policy-making, has decided to withdraw recognition and approval of Mr Osman’s leadership.
3. 986. As regards the allegations of interference in the operations of FESTU and the NUSOJ and the unilateral determination of the Government to no longer recognize FESTU under Mr Osman’s leadership, the Committee observes that the Credentials Committee reviewed a complaint by FESTU that the Government had unilaterally revoked its representation on the delegation to the June 2015 International Labour Conference and had observed that “modifications in the credentials of the tripartite delegation emanated from various public authorities, which demonstrates that there was a lack of consultation”, and “considered that this amounts to interference, in breach of the requirements set out in article 3(5) of the ILO Constitution, as the Government decided to unilaterally replace the nominated Worker representatives” (see ILO, International Labour Conference, 104th Session, Geneva, June 2015, Provisional Record 5C, paras 59–65). In the light of these observations and the limited information in the Government’s reply regarding the allegations of interference, the Committee must emphasize the general principle that the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct the elections themselves [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 391]. Deeply regretting that the Government restricts itself to saying that there was interference in the NUSOJ and FESTU activities in November 2014 by certain government officials who transgressed their duties without indicating the steps taken to redress the matter and further deploring the indication that the new Minister of Labour decided to withdraw recognition of the union leaders without providing any information on the basis for this decision or the legal action that was taken to legitimize such a critical decision which should only be made by a judicial body, the Committee urges the Government to: refrain from any further interference in the unions registered in Somalia with particular reference to the NUSOJ and FESTU; observe the right of the union to administer its own affairs and activities without let or hindrance and in line with the principles of freedom of association and democracy; ensure that the elected leaders of the union are free to exercise the mandate given to them by their members and to that extent enjoy the recognition of Government as a social partner. The Government must also ensure that the right to freedom of movement is fully respected and enjoyed by the union leaders.
4. 987. In relation to the serious allegation of multiple intimidations and death threats against the leaders and members of FESTU and the NUSOJ, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for the governments to ensure that this principle is respected and that an independent judicial inquiry body is instituted immediately with a view to fully clarifying the facts, determining responsibilities, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., paras 44 and 50]. The Committee deeply regrets that the Government’s reply does not address these grave matters and urges it to take the necessary measures to ensure the protection and guarantee the security of the FESTU and NUSOJ leaders and members, and establish a full and independent judicial inquiry on the allegations of intimidations and death threats affecting them and to keep the Committee informed of the outcome of the investigations.
5. 988. As regards travel restrictions against trade unionists, the Committee notes the Government’s indication that Mr Osman was occasionally restricted in his travel abroad due to ongoing interrogations for rebuking ministry officials and claiming to be the true union leader. The Committee recalls that, under the Universal Declaration of Human Rights, everyone has the right to leave any country, including his/her own, and to return to his/her country. Thus, trade unionists, just like all persons, should enjoy the right to freedom of movement. In particular, they should enjoy the right, subject to national legislation, which should not be so as to violate freedom of association principles, to participate in trade union activities abroad [see Digest, op. cit., paras 121 and 122]. The Committee again requests the Government to refrain from interfering in trade union activities and ensure that the right to freedom of movement is fully respected.
6. 989. Concerning the alleged government attack on Mr Osman’s management of NUSOJ funds through a Ministry of Information press release while no court case had ever been brought, the Committee regrets that the Government has not replied to this allegation, expresses its deep concern at the issuance of this press statement without following due process to bring the matters before the judiciary and trusts that the Government will refrain from such acts in the future.
7. 990. As regards the complainants’ allegations in relation to section 10 of the Labour Code, the Committee recalls that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a trade union must have at least 50 founder members [see Digest, op. cit., para. 28]. Concerning the complainants’ allegations regarding section 27 of the Labour Code, the Committee recalls that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed [see Digest, op. cit., para. 699]. As concerns the complainants’ allegations in relation to section 32(2), the Committee recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right organize their activities and to formulate their programmes [see Digest, op. cit., para. 881]. The Committee observes that Somalia ratified Conventions Nos 87 and 98 in 2014 and its report for the Committee of Experts on the Application on Conventions and Recommendations (CEACR) is not due until 2016. The Committee requests the Government to review promptly the Somali Labour Code in consultation with the freely elected social partners with a view to ensuring its full conformity with Conventions Nos 87 and 98 and to provide a full report to the CEACR to which it refers the legislative aspects. In these circumstances, the Committee is bound to urge the Government to avail itself of all necessary ILO assistance in this regard.