Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 397, Mars 2022

1. 742. The Committee last examined this case (submitted in 2018) at its October 2020 meeting, when it presented an interim report to the Governing Body [see 392nd Report, approved by the Governing Body at its 340th Session, paras 968–1022]. 
2. 743. The Government forwarded its observations in communications dated 23 March 2021 and 1 February 2022.
3. 744. Zimbabwe has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 745. At its October 2020 meeting, the Committee made the following recommendations [see 392nd Report, para. 1022]:
   • (a) The Committee requests the Government to provide, without delay, copies of the decisions issued by the High and the Harare Magistrates Courts on the lawfulness of the demonstration of October 2018.
   • (b) The Committee requests the Government to transmit, without delay, copies of the decisions rendered in cases of those arrested and detained in connection with the October 2018 workers. It further requests the Government to ensure that no retaliatory measures are taken by the police against workers who were not prosecuted due to the lack of evidence.
   • (c) The Committee urges the Government to give appropriate guidelines to the army and the police on the use of force during protests. The Committee urges the Government to indicate the measures taken to address the findings of the ZHRC report into the events of January 2019.
   • (d) The Committee urges the Government to drop the charges against the ZCTU Secretary General and its President brought for reasons connected to their trade union activities and to abstain from resorting to measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities. If, in the meantime, the court has heard their cases, the Committee requests the Government to provide a copy of the judgment.
   • (e) The Committee requests the Government to provide its observations on the ZCTU allegation regarding massive arrests following the events in January 2019 and to indicate the number of convictions and sentences rendered, as well as the basis therefore, as decided by the courts.
   • (f) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

B. The Government’s reply

1. 746. In its communications dated 23 March 2021 and 1 February 2022, the Government provides the following information in reply to the Committee’s recommendations above.
2. 747. Regarding recommendation (a), the Government indicates that there is no record of the ZCTU/Zimbabwe Lawyers for Human Rights’ application to the Magistrates and High Courts regarding the police ban to demonstrate, hence no decisions were found.
3. 748. Regarding recommendation (b), the Government informs that the seven accused people arrested in Harare (Messrs Peter Mutasa, Simon Mutasa, Ezekiel Matema, Japhet Moyo, Munashe Charovamiti, and Ms Bernice Maluleke and Ms Priscilla Jonhi) first appeared before the Magistrate Court on 12 October 2018. All seven were acquitted on 24 April 2019. The Government provides a copy of the judicial decision. The Government further indicates that no reports have been made on any retaliatory measures having been taken by the police against workers who were not prosecuted due to lack of evidence. The Government also informs that this matter was discussed in the Tripartite Consensus Building Meeting on Article 22 reports for 2021, held from 5 to 6 October 2021. The meeting was attended by representatives from the Zimbabwe Republic Police. The meeting agreed that any such retaliatory acts should be reported to the police for further investigations and prosecution of the perpetrators. The representative from the Zimbabwe Republic Police informed the meeting that any aggrieved person has the right to write to and follow-up with the Officer in Charge seeking clarification on how the case has been handled.
4. 749. Regarding recommendation (c), the Government indicates that the use of force by police during protests is governed by section 13(4) of the Maintenance of Peace and Order Act (MOPA), according to which, “The degree of force which may be so used shall not be greater than is necessary for dispersing the persons gathered and shall be reasonable and proportionate to the circumstances of the case and the object to be attained.” The Government indicates that, with support from the ILO, it developed a Handbook on Freedom of Association and Civil Liberties and the Code of Conduct for the State Actors in the World of Work, which provide information and guidelines on the conduct of trade unions and law enforcement agents during demonstrations/strikes. These have been mainstreamed in the police training modules. The Government indicates that, resources permitting, it will continue to facilitate capacity-building for law enforcement agencies on international labour standards. In this respect, the Government indicates that, prior to the above-mentioned tripartite consensus building meeting held in October 2021, a tripartite meeting on strengthening international labour standards observance and social dialogue in Zimbabwe was held on 30 July and 26 August 2021. It was agreed during both meetings that the engagement between trade unions and law enforcement organs was essential to review the implementation of the Handbook and the Code of Conduct for improved use by the law enforcement organs. Such an engagement will also see the unpacking of the MOPA and the general interface practice between trade unions and the police with a view to addressing the concerns of all parties, strengthening observance of international labour standards in the country and enabling better understanding and interpretation by stakeholders of the current law, thus improving relations and implementation in practice. The Government emphasizes that it prioritizes the observance of fundamental principles and rights of work and will keep prioritizing continuous training and engagement of law enforcement agencies in this respect. It further indicates in this respect that various activities which were agreed to by the tripartite constituents will be mainstreamed in the Zimbabwe Decent Work Country programme that is being finalized, and that technical assistance of the Office in this regard would be appreciated. The Government further indicates that it took note of the findings of the Zimbabwe Human Rights Commission (ZHRC) and it also submitted its response to the United Nations High Commissioner for Human Rights on the 2019 report of the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.
5. 750. With regard to recommendation (d), the Government informs that Messrs Peter Mutasa and Japhet Moyo were acquitted on 24 April 2019 of charges of participating in an unlawful gathering and attempting to cause public disorder in October 2018. Concerning the January 2019 demonstrations, the Government indicates that Messrs Moyo and Mutasa were arrested and appeared in the lower (Provincial) Court. The case was subsequently referred to the higher (Regional) Court. On 20 November 2019, the State dropped the charges. The Government provides copies of relevant documents obtained from the Judicial Services Commission. The Government points out that trade unionists should utilize the available social dialogue channels to discuss issues of concern, rather than resorting to violent protests, which may end up being in conflict with the law.
6. 751. Regarding recommendation (e), the Government submits that the arrests following the January 2019 protests were necessitated by the violent nature of the protests. According to the Government, these protests, which purportedly concerned the increase in the price of fuel, were actually concerted political protests which became violent, and included barricading public roads with boulders and burning tyres, attacks on police stations and bases, looting and destruction of public property in many parts of the country. The Government indicates that following due investigative procedures, several people were arrested for offenses including public violence, looting, arson, the destruction of public property worth more than US$300 million and murder of a police officer during the demonstrations. The arrests took place in several parts of the country in respect of the various mentioned offences and on different days. Hence there were no mass arrests without probable cause. The Government refutes the ZCTU allegations that there were indiscriminate arrests of protestors during the January 2019 protests and points out that the law-enforcement bodies intervened to deal with the violent nature of the protests, given the fact that the protests were called for by quasi-political organizations who had embarked on protest action that amounted to insurrection. The Government is in the process of ascertaining the total numbers of protesters arrested during that time; this process requires some time given that the registry of the Magistrate Court is not yet computerized. The statistics submitted so far from the Magistrates Court indicate that in Harare 249 people were arrested, with 109 people acquitted, two minors released in the custody of their parents and 138 convicted and sentenced for various crimes, including public violence, looting, etc.

C. The Committee’s conclusions

1. 752. The Committee recalls that the allegations in this case relate to two protest actions occurring in October 2018 and January 2019 following the adoption of certain fiscal and economic measures which, according to the ZCTU, had a negative impact on workers and the population in general, and were, according to the Government, necessary to address the economic challenges the country was facing. In the context of these protests, the ZCTU alleged restrictions on the right to demonstrate, killing of demonstrators, arrests, criminal prosecution of trade union leaders, and intimidation of trade union leaders and members.
2. 753. With regard to the October 2018 protest action, the Committee recalls from its previous examination of the case on the basis of information provided by the complainant and the Government that the Zimbabwe Republic Police (ZRP) banned the protest actions to be held on 11 October 2018 on the grounds that there was a cholera outbreak and that some of the issues raised by the ZCTU were not labour matters. The Committee noted that on 10 October 2018, the ZCTU, through the Zimbabwe Lawyers for Human Rights (ZLHR), made an application to the Magistrates Court in Harare in order to have the police ban on the protest lifted. Following the challenge, the High Court confirmed the ban and the case was still pending in the Harare Magistrates Court. The Committee requested the Government to provide, without delay, copies of the decisions issued by the High and Magistrate Courts on the lawfulness of the demonstration of October 2018. It is therefore not clear to the Committee why the Government now indicates that there is no record of the ZCTU application through the Zimbabwe Lawyers for Human Rights to the Magistrates and High Courts regarding the police ban to demonstrate. The Committee therefore reiterates its previous request and also requests the complainant to provide any further information at its disposal in respect of the appeal to the Harare Magistrates Court.
3. 754. Regarding its request for copies of the decisions rendered in the cases of those arrested and detained in connection with the October 2018 events, the Committee notes the documents and the information provided by the Government with respect to seven trade unionists arrested in Harare. While noting that all seven persons referred to by the Government were acquitted, the Committee recalls that a total of 43 people were arrested and 26 detained during the events of 11 October 2018. The Committee requests the Government to provide all relevant information regarding the remaining cases without further delay.
4. 755. With regard to the January 2019 protest action, the Committee recalls that, in some cases, it was accompanied by violence, looting of properties and shops and barricading of roads by protesters, which led to confrontation between the demonstrators and the police during and after the events, and that the violence by both protesters and the police was condemned by the ZCTU. The Committee further recalls in this respect that the events allegedly resulted in the death of 17 people, 81 gunshot assaults, 16 cases of rape and the arrest of 1,055 people. The Committee noted in this respect the “Monitoring Report in the Aftermath of the 14 to 16 January ‘Stay Away’ and Subsequent Disturbances” issued by the ZHRC, which noted numerous instances where the police and military patrols had acted unlawfully and without following due process during arrests, appeared to have used brute, excessive and disproportionate force and instigated torture. In light of the above, the Committee urged the Government to give appropriate guidelines to the army and the police on the use of force during protests and to indicate the measures taken to address the findings of the ZHRC report into the events of January 2019. The Committee notes the Government’s indication that the use of force by the police during protests is governed by section 13(4) of the MOPA, according to which, “The degree of force which may be so used shall not be greater than is necessary for dispersing the persons gathered and shall be reasonable and proportionate to the circumstances of the case and the object to be attained.” The Committee further notes the Government’s indication that a Handbook on Freedom of Association and Civil Liberties and the Code of Conduct for the State Actors in the World of Work provide information and guidelines on the conduct of trade unions and law enforcement agents during demonstrations/strikes and have been mainstreamed in the police training modules. The Government indicates that it will continue, resources permitting, to facilitate capacity-building for law enforcement agencies on international labour standards and further indicates in this respect that it was agreed during tripartite meetings held in 2021 that the engagement between trade unions and law enforcement organs was essential to review the implementation of the Handbook and the Code of Conduct for improved use by the law enforcement organs. Such an engagement will also see the unpacking of the MOPA and the general interface practice between trade unions and the police with a view to addressing the concerns of all parties, strengthening observance of international labour standards in the country and improving relations and implementation in practice. The Committee expects that the review of the implementation of the Handbook and the Code of Conduct by the law enforcement organs will be conducted without delay so as to ensure that the Handbook is further effectively mainstreamed in the police training activities, and the Code of Conduct is adhered to by all State Actors. The Committee further expects that the engagement between trade unions and law enforcement organs will address the concerns raised with regard to the application of the MOPA in practice. While noting the Government’s indication that it had taken note of the findings of the ZHRC, the Committee expected it to address them through concrete actions. The Committee urges the Government to provide detailed information on the steps taken to that effect.
5. 756. In relation to the same events, the Committee notes the Government’s indication that, on 20 November 2019, the State dropped the charges against Mr Moyo, the ZCTU Secretary-General, and Mr Mutasa, the then President of the ZCTU. The Committee further notes the Government’s indication that, according to the statistics it has been able to collect so far, among 249 people arrested in Harare, 109 people were acquitted, two minors were released in the custody of their parents and 138 were convicted and sentenced for various crimes, including public violence, looting, etc. The Government states that it is in the process of ascertaining the total numbers of the protesters arrested during that time. In view of the fact that the events took place over three years ago, the Committee expects the Government to provide definitive statistics on the number of convictions and sentences rendered, the basis therefor, as decided by the courts, and the number of persons still serving them.