Rapport intérimaire - Rapport No. 408, Octobre 2024

1. 343. The complaint is contained in communications dated 22 March 2022, 13 July 2022 and 29 February 2024 submitted by the Trade Union Congress of Swaziland (TUCOSWA). The International Trade Union Confederation supported the complaint in a communication dated 24 March 2022.
2. 344. In communications dated 13 April and 5 May 2022, the complainant and the Government informed the Committee of their acceptance to refer the dispute to voluntary conciliation at national level. In a communication dated 25 September 2023, the Government informed the Committee of the completion of the national voluntary conciliation and transmitted the report of the conciliation panel. The Government provided additional information in a communication dated 20 September 2024.
3. 345. Eswatini 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. 346. In its communications of 22 March and 13 July 2022, TUCOSWA alleges that, since September 2019, it reported various violations of Conventions Nos 87 and 98 to the Committee of Experts on the Application of Conventions and Recommendations (CEACR). Notwithstanding, the situation has since worsened with the banning of trade union gatherings, and the arrest, killing and torture of members and leaders of the trade union movement by state security.
2. 347. In its communication dated 29 February 2024, after the completion of the national voluntary conciliation, the complainant observes that, overall, conciliation as a concept must be embraced as a necessary tool for ILO Member States to be encouraged to dialogue at national level, in as much as the ILO supervisory bodies must always have their doors open to complainants who, for reasons justifiable to their situations, may wish that their complaints be dealt with by them at first instance. The voluntary nature of the conciliation process must be emphasized to the parties. The complainant further calls for some non-binding proposed procedures to be developed to encourage and guide Member States and their social partners to engage in such processes. The complainant provides its observations and updates on the national voluntary conciliation report issued in September 2023 and highlights the issues that may still require examination by the Committee.
4. Incidents involving police violence against protest actions and union members
5. 348. At the outset, in response to the Government’s declaration that events falling within the purview of the police during the political unrest which occurred in June 2021 were purely political and not associated with the furtherance of socio-economic demands, the complainant observes that none of the reported complaints occurred in June 2021. The June 2021 political unrest situation in the country cannot be used as a blanket cover for violation of workers’ rights guaranteed by ILO Conventions. In the complainant’s view, the Government could have declared a state of emergency under the Constitution if, in their view, there was a situation which required the curtailing of interference with the guaranteed rights and freedoms of citizens. There was no state of emergency declared since there was no unrest and there were no purely political demands being advanced by TUCOSWA and its affiliates. Furthermore, the COVID-19 restrictions were later used to supress gatherings of trade unions while other cultural and religious organizations were allowed. In the instances presented in this case, the police violently dispersed the gatherings on the basis that unions lacked the necessary permission from the city councils. The COVID restrictions argument was an afterthought defence raised at the conciliation process. The complainant’s serious allegation of police violence against workers during protests concerns the following events.
6. 349. On 16 July 2021, TUCOSWA was denied the right to gather for purposes of delivering petitions directed to the Prime Minister to protest the arbitrary victimization and intimidation of trade union leaders by security forces. The police and the army were dispatched to the cities and victimized anyone who was found in town wearing TUCOSWA regalia including face masks. Mr Kwazi Simelane, Chairperson of TUCOSWA’s Youth Structure and Deputy President of the Swaziland Democratic Nurses Union (SDNU), was assaulted by the police in full view of the public at the Manzini bus rank for having been found wearing the union’s T-shirt and a beret. He was subsequently charged for singing inciting songs. The persecution of Mr Simelane is still ongoing with continual postponement of the case at the Magistrate Court. The case was resumed after the police were called to testify in the mediation after which, on the following day a summons was issued against Mr Simelane. This was two years after he was charged. The immediate resumption of the prosecution was in direct response to, and retaliation for, the conciliation. The next court appearance by Mr Simelane was on 10 April 2024, although he had been arrested and charged in July 2021. The prosecution of the criminal case is being deliberately delayed to intimidate Mr Simelane and limit his trade union activism. There is a prospect that Mr Simelane may be unfairly found guilty of these trumped-up charges and finally dismissed from employment. Therefore, TUCOSWA calls for the withdrawal of the prosecution and the charges against Mr Simelane.
7. 350. On 13 October 2021, workers organized under the Swaziland Transport, Communication and Allied Workers Union engaged in a protest action for improved terms and conditions of employment within the public sector. While peacefully demonstrating in Luyengo, one of their workstations, the police violently dispersed them and, in the process, shot and killed Mr Sabelo Dlamini, a worker who was part of the demonstration. There are criminal elements among the perpetrators of the killing. The complainant expresses the hope that the Government will not frustrate the investigation by the Eswatini Commission on Human Rights & Public Administration/Integrity (CHRPA) with the same reasoning as it articulated during the conciliation session.
8. 351. On 20 October 2021, the Swaziland National Association of Teachers (SNAT), together with the SDNU and the National Public Service and Allied Workers Union (NAPSAWU) organized a gathering to petition the Government on matters arising from their negotiations on terms and conditions of employment. They followed all the procedures laid down in the Public Order Act, 2017, and were granted a certificate of compliance by the Mbabane Municipal Council. The petition delivery was, however, prohibited by the police on the day of the action without following due process. As a consequence of the police prohibition, the protestors were brutalized by the police in Manzini. Tear-gas canisters were thrown into a bus carrying workers travelling to Mbabane from Piggs Peak and many of them were injured as they were jumping out through the windows of the bus. Some were shot with rubber bullets and hit with police batons. A car branded as SNAT was shot at in its rear side with a live bullet. The complainant transmitted photographs and footage of the damage suffered.
9. 352. The complainant reports that, on 28 October 2021, Ms Winile Mlotsa, the First Deputy Secretary General of TUCOSWA and the General Secretary of the Swaziland Agriculture and Plantations Workers Union (SAPWU) was tortured by the army when she was part of a group of about 50 workers who were to attend a planned peaceful protest action organized by TUCOSWA in Siteki town. The bus carrying the workers was waylaid by the army and forced to drive to a secluded forest some 30 kilometres from Siteki town. The workers were then made to roll on muddy ground and were beaten with sjamboks (heavy leather whips) and sticks. A report by SAPWU gives a detailed account of the events. State security personnel manning a public gathering are commanded by one centre which is usually the police. The police were aware of the violence against the workers by the army. The complainant indicates its intention to make further observations once the report by the CHRPA has been issued, in accordance with the agreement of the parties.
10. 353. The complainant further reports that officials of one of its affiliate organizations, namely the Amalgamated Trade Union of Swaziland (ATUSWA), were assaulted by officials of another union (the Swazi Economic Improvement Workers Union (SEIWU)), which is favoured by an employer in the timber sector (Montigny Investment). Strikingly, ATUSWA officials were arrested and prosecuted but not the assailants. Attempts by the Government to mislead the conciliation panel to believe that charges were also laid against the perpetrators of the violence failed as there was no proof. The ATUSWA officials were finally acquitted by the Magistrate Court on the 23 March 2023. Notwithstanding their acquittal, which was a clear indication that the other party had been the perpetrators, they were not called upon to account for their wrongdoings. The matter was not resolved at the conciliation. The fact that perpetrators of violence against independent unions are not reprimanded could cause fear and intimidation in the application of the rights guaranteed under Convention No. 87. In this case the ATUSWA officials were assaulted for being found recruiting workers to join the union. The complainant appeals that this matter be examined by the Committee for proper direction and for avoidance of repetition.
11. Banning of union gatherings
12. 354. On 21 October 2021, the Government issued a directive banning local municipal councils (local government authorities) from issuing permits for gathering in all towns and cities. The ban affected all trade union gatherings. Following the ban on the of issuance of gathering permits by the local government authorities, TUCOSWA notified the Ministry of Housing and Urban Development of its intention to hold gatherings to consult its members on 28 October 2021 on various socio-economic issues affecting them in the context of political tensions. By a letter dated 27 October 2021, the Principal Secretary of the Ministry of Housing and Urban Development informed TUCOSWA that gatherings were banned in all urban authority jurisdictions. On the same date, the Police Commissioner wrote to the union and directed that the intended gathering scheduled for 28 October countrywide be postponed sine die in the interest of public order, safety and national security.
13. 355. TUCOSWA applied to the Municipal Council of Manzini for permission to gather on 9 February 2022 which was declined on the basis of the directive from the Ministry of Housing and Urban Development. TUCOSWA applied for an order at the Magistrate Court challenging the decision of the Municipal Council of Manzini refusing the union’s application to gather. The magistrate declared the Municipal Council’s decision to be unlawful and null and void of force or effect. The Court Order is attached to the complaint. However, the union is still denied permission to gather by the Municipal Council of Manzini notwithstanding the Court Order of the Magistrates Court.
14. 356. In the midst of the voluntary conciliation meeting to resolve the issue in July 2023, the Government issued a public announcement purporting a relaxation of the ban by allowing the municipal councils, as of 18 July 2023, to issue permits for gatherings not exceeding 10 people. This is not only a violation of Convention No. 87, but also of the Public Order Act, 2017, which provides that a gathering of not fewer than 50 people does not require a notice. Public trade union gatherings remain banned in Eswatini.
15. 357. On 30 August 2023, the police fired tear-gas canisters and rubber bullets into a peaceful gathering of members from the health sector of TUCOSWA (Swaziland Nursing Association (SNA)) who had gathered, supported by the presence of the leadership of TUCOSWA, to demand for quality public health. The SNA had complied with the dictates of the Public Order and had notified the Municipal Council of Mbabane of their intention to gather seven days before the action while the law requires only four days. The Council never acted on the notice and, on inquiry, it informed the SNA that it had failed to get hold of the police to be part of the consultative meeting as envisaged by the Act. In such instances, section 8(13) of the Public Order Act provides that “if the local authority fails [to] invite the convenor to a consultative meeting or to comply with a demand contemplated in subsection (12), the convenor shall be deemed to have complied and shall have a right to hold a gathering in the absence of a compliance certificate”. The police were, however, present in large numbers at the gathering and armed. They demanded that a compliance certificate be produced for the gathering, and they further pronounced that the gathering was more than the directed number of ten people allowed to gather. They then, without provocation, fired tear-gas canisters and rubber bullets at the peacefully gathered workers and members of the community who had joined the gathering. Six workers were treated for rubber bullet wounds and later discharged. The right to peaceful assembly remains banned, and laws regulating gatherings are suspended in favour of Government administrative orders.
16. 358. TUCOSWA contests the claim that the directive is no longer in place and appeals that this matter be examined by the Committee as, without the right to assembly, there is no meaning to the right to association and to organize.
17. Acts of anti-union discrimination against union officials
18. 359. The complainant alleges the bashing of a union leader by a State-owned enterprise in the electricity sector. On 15 December 2021, Ms Maureen Nkambule, Secretary General of the Swaziland Electricity Supply, Maintenance and Allied Workers’ Union (SESMAWU), was dismissed by the Eswatini Electricity Company (EEC) on claims that she had given an interview to the media in 2018 on issues relating to the company. The dismissal occurred even though she commented on matters of the operations of the union, not the company. The matter was reported by TUCOSWA to the Government for its intervention, without success. The complainant provided a report by the SESMAWU giving details on the case. Ms Nkambule was dismissed from work and her internal appeal against the finding of guilt and dismissal was unsuccessful. In the report, it is alleged that Ms Nkambule was first charged and suspended by the employer for a communiqué written by the union during her absence. Ms Nkambule was reinstated after a court application against her suspension. The employer also charged Ms Nkambule with the allegations of: (i) inciting workers to take strike action in January 2019 even after a press statement by the enterprise was issued declaring that it was an essential service employer and that a strike action would be illegal; and (ii) deliberately making false accusations that management is using a rival union to destroy SESMAWU, thereby creating a perception of dishonesty on the part of the employer and bringing the management of the EEC into disrepute. According to the SESMAWU report, the charges amount to union bashing and anti-trade union discrimination and is a violation of international labour standards on freedom of association and protection of trade union officials or leaders.
19. 360. In relation to the allegation that Ms Nkambule made a statement to a newspaper in January 2019 as follows: “There was never a ‘legal’ strike in the history of the company unless you can give me one that was, therefore, the strike is still on as planned”, SESMAWU indicates that the statement as reported in the newspaper is inaccurate and therefore gives a wrong impression of how Ms Nkambule responded to a question from the journalist on whether or not employees of the enterprise would embark on a strike. According to the SESMAWU, on 21 and 22 January 2019, Ms Nkambule was part of a meeting between the union and management of the company, whose purpose was to ensure that both parties work collaboratively to put in place measures to dissuade members of the union from proceeding with the planned strike. Ms Nkambule’s attendance at the meeting is supported by the minutes of the meeting which were presented as part of the employee’s evidence. Notably, the employer had not disclosed that such a meeting was held, nor did they disclose the minutes. The union and management agreed to issue a joint communiqué advising members of the union that, among other things, management was making efforts to resolve a grievance which was the main reason for the decision to strike and that the intended strike action would be illegal as the company is designated an essential service by law. Indeed, on 22 January 2019, management and the union signed and issued a joint communiqué as per the resolution of the meeting. The employer did not disclose the communiqué during the hearing. It was submitted by the employee as part of her evidence. In addition, on 22 January 2019 and in furtherance of the social partners’ resolution, Ms Nkambule issued a letter to the members of the union in her capacity as Secretary General discouraging them from embarking on the strike planned for 24 January 2019. The strike which Ms Nkambule was found to have incited did not take place and the company did not suffer any financial loss. Notwithstanding, Ms Nkambule was dismissed from work following a two-day strike which happened in February 2019 in which Ms Nkambule did not even participate and that she and the whole union executive took steps to prevent by means of communiqué. The report observes that the disciplinary processes against Ms Nkambule ignored or avoided these facts and notes that the other over ten employees who were charged with riotous behaviour by inciting the February strike were not dismissed despite the fact that the strike did take place and lasted two days, obviously resulting in financial loss to the employer. Instead, they were given written warnings and they remain employees of the company. In the view of the union, this inconsistency to treat like cases alike and bias against Ms Nkambule are simply glaring. In addition, the President of SESMAWU, Mr Maseko, testified that while the disciplinary hearing against Ms Nkambule was in progress, he was told by an employee of the EEC in the legal and/or employee relations department that management wanted to drop the charges against her provided she resigned her position as Secretary General of the union.
20. 361. Furthermore, the complainant draws the attention of the Committee to another critical situation where a union leader is deprived of their rights to represent the union. Mr Nkomondze, the Second Deputy President of TUCOSWA, is employed by a State-owned enterprise, Eswatini Water Services Corporation (EWSC). The employer of Mr Nkomondze refused to release him for union business on the basis that, as an enterprise, they do not recognize appointments of TUCOSWA. The employer argued that they had a recognition agreement with the enterprise union not TUCOSWA. This happened despite the fact that TUCOSWA notified them when Mr Nkomondze was elected in 2021. Furthermore, a legal notice had been issued by the Minister of Labour legalizing the operations of the conciliation team with Mr Nkomondze included. Since the election of Mr Nkomondze to the union, he is always refused by his employer to attend any of the activities organized by TUCOSWA, which filed a formal request for the intervention of the Labour Commissioner under the terms of the Industrial Relations Act. However, the employer maintained its position that they will never allow him to attend to any TUCOSWA business. The last sitting of the intervention meeting was held on 21 February 2024. This position by the State-owned enterprise has caused TUCOSWA to commence a discussion within its structures on whether to continue sitting on all the tripartite boards where it is represented. There is a likelihood that the other employers may follow in the steps of the EWSC. In the complainant’s view, this action is in the main intended to intimidate and victimize not only Mr Nkomondze but any of his workmates from taking up positions within TUCOSWA in future elections. This conduct has undermined the efforts of the parties to find solutions on the reported violations of Convention No. 87. Therefore, the complainant appeals for the urgent examination of this case by the Committee.
21. 362. The complainant also refers to the case of Mr Mcolisi Ngcamphalala, a SNAT Lubombo official, who was allegedly arrested in January 2019 for jaywalking with a colleague while wearing SNAT branded clothes. They were on their way to an activity organized by TUCOSWA when they were arrested. They had been attending court hearings since January 2019 without the matter being finalized. The complainant is of the view that the arrest of Mr Ngcamphalala was an act of victimization and intimidation supported by the excessive time it has taken to hear and conclude a jaywalking case. Investigations conducted by TUCOSWA reflect that the matter was heard in Manzini and later transferred to Matsapha, to which the accused’s attorney objected. The matter was last heard in 2019. After the appearance of the police on this complaint at the conciliation, summonses were issued for Mr Ngcamphalala in July 2023 to appear in court for his alleged jaywalking charges dating back to 2019. To date, the case has not been finalized and the Government continues to refuse to drop the charges despite their clear trumped-up nature. Since the matter remained unresolved at the conciliation, the complainant appeals that the issue be examined by the Committee as there is a likelihood that Mr Ngcamphalala may be ultimately found guilty, and his services as a teacher terminated.
22. 363. In its concluding remarks, the complainant calls for the adoption, together with the social partners, of a plan of action with timelines, to ensure that public order measures respect civil liberties and the right to freedom of association in line with ILO Convention No. 87 including with regard to the Code of Good Practice for Industrial and Protest Actions (legal notice No. 202 of 2015), the Code of Good Practice on Gatherings (legal notice No. 201 of 2017) and the Public Order Act of 2017 as well as the capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country including the special sessions planned for Members of Parliament, Cabinet Ministers and executive leaders of trade unions.

B. The Government’s reply

1. 364. In its communication dated 25 September 2023, the Government recalled that the parties agreed on 27 May 2022 to refer the matters to a process of national voluntary conciliation. The parties received technical guidance from the Office in September 2022 and January 2023 on the working methods of undertaking the voluntary conciliation and international labour standards related to the complaint. Then, the Ministry of Labour and Social Security obtained Cabinet approval for an inter-ministerial government negotiating team to represent the Government during the conciliation proceedings, for the appointment of a senior Judge of the Industrial Court of Appeal to chair the conciliation panel composed of the senior Judge and two senior Commissioners appointed by the Conciliation, Mediation and Arbitration Commission (CMAC), and for the corresponding budget for the administrative support to the conciliation process. The Government adopted legal notice No. 33 of 2023 commissioning the appointment of members of the conciliation panel and the negotiation teams to represent both parties in undertaking the process of a national voluntary conciliation. The Government then published legal notice No. 81 of 2023 on the Conciliation Rules which were negotiated upon and agreed to by the parties. These Rules were meant to be the blueprint to guide the parties on a variety of issues including representation of the parties, quorum, scope of the conciliation, hearing of evidence, admission of witnesses, interaction with the media, among other things. The national voluntary conciliation has since been successfully completed, subsequent to numerous extensions of the initially allocated six months period. The last conciliation was held on 26 July 2023 subsequent to which the conciliation panel prepared its report. Several meetings were held with the parties for purpose of going through the draft report, culminating in the official signing off of the final report by the parties on 15 September 2023.
2. 365. The Government indicates that during the voluntary conciliation engagements, the parties agreed to combine the issues which formed part of Case No. 2949 with those issues giving rise to Case No. 3425. In the view of the Government, this would require the Committee to consider a consolidation (or merger) of these two cases in the future. Consolidating the two cases would make it convenient not only for purposes of reporting and follow-up action but also for the purposes of monitoring and evaluating the implementation of an agreed implementation plan which is yet to be drawn up by the parties under the terms of paragraph 10 of the National Voluntary Conciliation Report. The Government indicated its intention to avail itself of the technical support of the Office for the drawing-up of such an implementation plan. The parties have also agreed to avail themselves of the Office’s technical assistance in ensuring the implementation of some of the resolutions. In a communication dated 20 September 2024, the Government provides additional information on the issues that were unresolved during the voluntary conciliation process and updates on the technical assistance received from the Office to draw-up an implementation plan for their resolution. It also provides updates on the follow-up measures taken at the country level.
3. 366. The Government indicates the Office’s technical support mission was strategically scheduled in February 2024 to enable the mission to address not only the recommendations of the reports of the Independent Investigation Committee and the National Voluntary Conciliation Report, but also to clarify the latest comments of the CEACR on the Government’s 2023 report on the application of Convention No. 87. The technical mission which visited Eswatini on 22– 23 February 2024 prepared the draft implementation plan with some recommendations. This draft implementation plan was transmitted to the Government and TUCOSWA on 2 May 2024 and will serve as a road map for resolving outstanding issues on the complaint.
4. 367. The Government and TUCOSWA met on the 11 July, 25 and 26 July and 8 August 2024 to develop the implementation plan, building upon the ILO technical mission report. A draft implementation plan was adopted during the meeting held on the 8 August 2024, save only that the parties agreed to have the plan costed to facilitate resource mobilization for the effective implementation of its activities or action points. Moreover, since the plan involves other stakeholders, the parties agreed that it would have to be subjected to a tripartite-plus stakeholder validation meeting. The Government has availed itself of the assistance of the Office to facilitate arrangements for this tripartite-plus validation meeting, including subjecting the implementation plan to professional drafters for proper alignment and structuring. Meanwhile, processes are underway to convene the first stakeholder sensitization workshop which will be held with the assistance of the ILO Country Office in Pretoria in October/November 2024.
5. 368. The Government also provides its observations on the specific issues contained in the complainant’s communication of February 2024.
6. Incidents involving police violence against protest actions and union members
7. 369. In relation to the allegations that Mr Simelane, TUCOSWA’s Chairperson of TUCOSWA’s Youth Structure and Deputy President of the SDNU, was assaulted by the police at the Manzini bus rank for having been found wearing the union’s T-shirt and beret and subsequently charged for singing inciting songs, the Government submitted to the conciliation panel that Mr Simelane was charged with a criminal offence under the Public Order Act, the offence being contravention of section 15(3)(b) of the Act (in respect of any person participating in a gathering who uses threatening, insulting or abusive words or behaviour, or displays anything or does any act, with intent to provoke public disorder or by which a breach of the public order is likely to be occasioned, provided that a legal and peaceful strike shall not be considered to be intended to provoke public disorder or to be a breach of public order). Mr Simelane was not arrested for lawful trade union activities but for conducting himself in a dangerous manner to himself and other road users and resisting arrest. The offence happened in the middle of the unrest period which started in June 2021. The normal business or functioning of various institutions in the country including the judiciary were grossly affected. This caused a huge backlog of cases in the courts arising from the suspension of pending or part-heard cases and enrolling new cases for prosecution. As a result of this backlog, the criminal trial of Mr Simelane only started in June 2023. Since its commencement, the matter has been called up in the Manzini Magistrate Court on 13 occasions. The matter has been postponed on various occasions at the sole instance of the defence counsel. The last date when the matter was called up, on 27 August 2024, the trial could not proceed since the defence counsel again applied for a postponement to 8 October 2024. The postponement was granted by the Court. Therefore, the matter is still pending.
8. 370. With regard to TUCOSWA’s allegations that, on 13 October 2021, police violently dispersed a peaceful protest action of the Swaziland Transport, Communication and Allied Workers Union in the city of Luyengo and, on that occasion, shot and killed Mr Sabelo Dlamini, a worker who was part of the demonstration, the Government submitted to the conciliation panel that the matter could not be discussed in detail since the next of kin of the deceased have initiated a civil suit against Government. Otherwise, the police did investigate the events surrounding the circumstances under which the deceased passed on and do possess a report to be used in the court proceedings. At the end of the conciliation process, the parties agreed that the matter would be referred to the CHRPA to investigate the circumstances which led to the death of Mr Dlamlni. The CHRPA is to determine the question of whether there was a violation of human rights and freedom or fundamental human rights arising from the death of Mr Dlamini and exercise all its powers as vested in it by the Constitution of the Kingdom.
9. 371. Concerning the allegation that, on 20 October 2021, members of the SNAT together with members of the SDNU and NAPSAWU, were prohibited on the day of action to march and were then brutalized by the police in Manzini, the Government submitted to the conciliation panel that the compliance certificate which had been issued by the Mbabane local authority subsequent to an application made by the unions was revoked the day before the intended gathering by the National Commissioner of Police under the provisions of section 9 of the Public Order Act No. 12 of 2017, on the basis of having reason to believe that the gathering would endanger the maintenance of public order and public safety. This decision to prohibit the gathering was communicated to the organizers of the gathering. The parties agreed that this matter be referred to the ILO Office for an advisory non-binding opinion. The conciliation panel reports that the parties agreed that this matter be referred to the Office for an advisory non-binding opinion. The opinion should cover the question as to what processes should precede the prohibition of a gathering that has been approved after consultation and where a certificate of compliance has been issued considering the relevant ILO Conventions.
10. 372. With regard to the allegation that the police indiscriminately and recklessly shot tear-gas canisters into a bus carrying workers from Piggs Peak town on their way to attend a gathering in Mbabane city, the Government denied the occurrence of such an event and submitted that proportionate force was used to turn back a crowd that intended to proceed with a gathering which had been prohibited by the National Commissioner of Police under the Public Order Act. The conciliation panel reports that the parties agreed that this matter should be referred to the CHRPA for appropriate investigations on whether there were any human rights violations that occurred during this incident.
11. 373. With regard to the allegation that workers were harmed by the army on 28 October 2021 when they were intercepted by the army on their way to a protest action organized by TUCOSWA, and in particular that the First Deputy Secretary General of the complainant, Ms Winile Mlotsa, and many workers were beaten up and humiliated by the army after their bus was diverted into a secluded forest, the Government submitted to the conciliation panel that there was no record of this occurrence since no complaint was opened with the nearby police station by the affected persons in order to trigger an appropriate investigation. At the end of the conciliation, the parties agreed that this matter should be referred to the CHRPA for appropriate investigations of any human rights violations.
12. 374. The complainant alleged that while officials of the ATUSWA were assaulted by officials of another union in the town of Bhunya, namely SEIWU, they were arrested and prosecuted but not the assailants. The Government submitted to the conciliation panel that the instances of assaults that happened were reported to the Bhunya Police Station by members of both the ATUSWA and SEIWU. Dockets were opened by the police in respect of all the assault complaints that were reported and referred to the office of the Public Prosecutor for a prosecution decision to be made. The Director of Public Prosecutions (DPP) decided to prosecute the ATUSWA members on the basis that in the DPP’s opinion, the ATUSWA members were the ones who had been the aggressors. The matter remained unresolved before the conciliation panel.
13. Banning of union gatherings
14. 375. With regard to the allegation that, on 16 July 2021, TUCOSWA was prohibited by the police from proceeding with its planned petition delivery to the Prime Minister’s Office, without any notice to the municipal council concerned or any due process of law, the Government submitted to the conciliation panel that the application to convene the protest march in a public space was declined on grounds that public gatherings were not permitted during this period due to the COVID-19 protocols in force at the time. The report of the conciliation panel refers to the agreement among the parties to seek an advisory opinion from the Office on the following question: What are the procedural steps that should precede the denial of permission to convene a gathering in a public space under the terms of the Public Order Act No. 12 of 2017 in view of the relevant ILO Convention?
15. 376. Furthermore, the Government submitted to the conciliation panel, in relation to the prohibition by the police for the SNAT, SDNE and NPSAWU to petition the Government on 20 October 2021 despite a certificate of compliance granted by the Mbabane Municipal Council, that the compliance certificate which had been issued by the Mbabane local authority was revoked the day before the intended gathering by the National Commissioner of Police under the provisions of section 9 of the Public Order Act, 2017, on the basis of having reason to believe that the gathering would endanger the maintenance of public order and public safety. This decision to prohibit the gathering was communicated to the organizers of the gathering.
16. 377. In addition, with regard to the allegation that trade unions are still denied the right to assembly since the issuance, on 21 October 2021, of a directive by the Ministry of Housing and Urban Development banning the local municipal councils from issuing permits for gatherings in all towns and cities, thus affecting all trade union gatherings, the Government submitted to the conciliation panel that the resolution of this matter rests with harmonizing the differences in interpreting the provisions of section 9 of the Public Order Act, particularly on the powers of the National Commissioner of Police to prohibit a gathering in the event that he has reason to believe that the gathering would endanger the maintenance of public order and public safety. Otherwise, the Government maintained that the right to assembly remains fully enshrined and protected by the law.
17. 378. The report of the conciliation panel indicates on both issues that the parties agreed that the matter be referred to the Office for an advisory non-binding opinion. The opinion should cover the question as to what processes should precede the prohibition of a gathering that has been approved after consultation and where a certificate of compliance has been issued considering the relevant ILO Conventions. This is confirmed in the draft implementation plan agreed between the Government and TUCOSWA in August 2024.
18. 379. Lastly, with regard to the call made by TUCOSWA that the directive made by the Minister of Housing and Urban Development be publicly withdrawn – by a public statement of the Government – in the same manner as it was issued, the Government submitted to the conciliation panel that the instruction that was issued to local authorities or municipal councils was not meant to suspend the operation of the public order laws. This instruction was issued in the context of the widespread public unrest, riots and looting which were happening countrywide starting from June 2021. Therefore, one should consider that this instruction is no longer in force as municipal councils were, as at the time of the conciliation, entertaining applications made by interested organizations for gatherings under the terms of the Public Order Act, 2017. There was no settlement on this matter at the end of the conciliation. In its latest communication, the Government indicates that it is currently working on a public statement to be issued providing clarity on the issue of holding public gatherings. It reiterates that public gatherings continue to be held in the country, many of which included massive protest marches of public sector unions to deliver petitions at ministries for the May Day celebrations where the Government was invited and attended the celebrations. While it states that public gatherings are very much allowed in the country under the Public Order Act, the Government also recalls that any organization which has been unreasonably refused authorization to gather in a public space can approach the Principal Magistrate Court of the locality where the gathering sought to be held for a review of the decision of the local authority.
19. Acts of anti-union discrimination against union officials
20. 380. In relation to the case of Ms Maureen Nkambule, a SESMAWU official, who was allegedly dismissed by a State-owned enterprise on charges of breach of confidentiality/media statements and an allegation of riotous behaviour, the Government submitted to the conciliation panel that this case of dismissal is an individual labour law dispute between an employer and an employee which was rightfully referred by the aggrieved employee to the legally recognized labour dispute resolution structures where it remains pending. In the Government’s view, it would be best to allow that process to be exhausted.
21. 381. Moreover, the Government recalls that the Industrial Relations Act affords an employee who alleges that the employer’s decision to terminate their employment is based on any of the grounds that are listed under “automatic unfair dismissal” (section 2 of the Act) to be entitled to double compensation compared to the one ordinarily received by any employee whose dismissal is not listed as “automatically unfair”. According to the Government, exercising rights emanating from the law, including the right to be elected and to serve in the leadership structures of a union is listed under automatically unfair dismissal. In the present case, Ms Nkambule is following the statutory procedures of challenging the alleged unfairness of her dismissal in that she has reported a dispute to the CMAC. The CMAC has duly conciliated in the dispute but could not be successful in resolving it and issued a Certificate of Unresolved Dispute allowing the dispute to be referred to a judgment forum, be it arbitration offered by the CMAC or the Industrial Court, as the parties may elect. The Government declares that it cannot interfere with the decision of an employer to discipline an employee as this is the sole preserve of the labour dispute resolution forums, either the CMAC or the Industrial Court.
22. 382. While there was no settlement of the case at the end of the conciliation process, the panel observed that there seems to be an underlying understanding and/or concern by TUCOSWA that the protection of union officials under the law may not be adequate and, without passing judgement as to whether or not this was true, it recommended the parties to refer the general principle of protection of trade union officials to the Labour Advisory Board (LAB) for an open discussion regarding the adequacy of the current protection of union officials and any improvements required to provide for the protection of trade union officials from victimization. The panel considered the LAB, because of its tripartite nature, to be the best platform for the social partners to deal with this issue.
23. 383. In relation to the allegation that Mr Mcolisi Ngcamphalala, a SNAT Lubombo official, was arrested for jaywalking with a colleague while wearing SNAT branded clothes and had since been attending court hearings without the matter being finalized since January 2019, the Government submitted that Mr Ngcamphalala was charged for jaywalking and resisting arrest. On his arrest the police used their discretion by allowing him to pay an admission of guilt fine. Mr Ngcamphalala exercised his constitutional right and refused to pay the admission of guilt fine. The police informed him that he was being arrested for conducting himself in a manner dangerous to himself and other road users. He was finally arrested by the police. The accused was charged with the offence of contravening the Road Traffic Act (No. 6 of 2007) and resisting arrest. There was no settlement of the matter at the end of the conciliation. In its latest communication, the Government confirms that this case is pending before the Manzini Magistrate Court (Case MZT69/2019). Mr Ngcamphalala is legally represented in the criminal prosecution and has already pleaded to the charges and therefore he is now entitled to a verdict. The Government’s position is that the matter can now be logically concluded by the courts since Mr Ngcampalala has already pleaded and is now in law entitled to a verdict.
24. 384. Lastly, with regard to the case of Mr Nicholas Nkomondze, the conciliation panel observed that on a number of occasions the conciliation meetings would be delayed due to the refusal of his employer to release him from work to participate in the conciliation. The complainant refused to proceed in his absence and raised concerns about the general outlook of being released for union duties at his workplace. The Government did intervene and sought to intercede with the employer to seek the release of Mr Nkomondze with limited success. Overall, his unavailability did retard progress. On a number of occasions, the meetings of the conciliation panel had to be postponed as the attendance of Mr Nkomondze could not be secured. On one occasion, the Chairperson of the panel had to engage with the employer which resulted in Mr Nkomondze’s attendance. According to the conciliation report, while the complainant acknowledged the Government’s and the Chairperson’s efforts, it also viewed the continued refusal from the employer to release Mr Nkomondze as intimidation.
25. 385. In its latest communication, the Government acknowledges that the difficulty faced was that Mr Nkomondze is employed by the Eswatini Water Services Corporation (EWSC) which has a signed, valid and subsisting Recognition and Procedural Agreement with the Swaziland Water Services and Allied Workers Union signed in February 2019. And while clause 12 of the Recognition and Procedural Agreement provides for up to 30 days leave of absence on union business to elected union executive members, including shop stewards, the challenge with Mr Nkomondze was that he is not an executive member of the union at enterprise level nor is he even a shop steward. He is therefore not covered by clause 12 of the Recognition and Procedural Agreement that the EWSC has with its recognized union. In the circumstances, the employer was unable to release Mr Nkomondze on the basis of clause 12 of the enterprise based Recognition and Procedural Agreement which does not extend the rights accruing to the union executive members and shop stewards at enterprise level, to the Federation or Confederation. Therefore, a breakthrough in resolving this impasse lay on amending the Recognition and Procedural Agreement, something which is the sole preserve of the social partners to the Recognition Agreement, not an external party. The Government recalls that even though the EWSC is a parastatal company, the Government is precluded from interfering, dictating or imposing its administrative weight to the social partners at enterprise level to amend their Recognition and Procedural Agreement, which is equivalent to a collective agreement. Any attempt of interference or imposition by the Government on this matter would conversely attract a violation of Convention Nos 87 and 98, respectively. The Government’s intervention on this matter during the voluntary conciliation proceedings was purely on a without prejudice basis and ultimately succeeded to secure an ad-hoc arrangement with the employer concerned to release Mr Nkomondze to attend the voluntary conciliation process.
26. 386. With regard to the complainant’s suggestion that an action plan with timelines be adopted with respect to matters touching upon civil liberties and freedom of association, the Government informed the Committee of its readiness to consider proposals for improving the implementation of all instruments that are meant to demonstrate the application of Conventions Nos 87 and 98 both in law and practice. According to the conciliation report, the parties agreed that the conciliation report should be tabled before the LAB for wide stakeholder consideration and for the development of an action plan on improving the implementation of Conventions Nos 87 and 98.

C. The Committee’s conclusions

1. 387. The Committee notes that the allegations in this case, presented in March 2022, concern the harassment, arrest and detention of trade union leaders by the police, assault by the security forces into union gatherings leading to acts of torture and a killing, a general ban on public gatherings affecting particularly the right of assembly of unions, and anti-union measures against union leaders by State-owned enterprises and public institutions.
2. 388. The Committee notes that, following the presentation of the complaint, TUCOSWA and the Government agreed in May 2022 to refer the matters to a process of national voluntary conciliation. The parties received technical guidance from the Office in September 2022 and January 2023 on the working methods of undertaking the voluntary conciliation and on international labour standards related to the complaint. The Government issued legal notice No. 33 of 2023 commissioning the appointment of the conciliation panel, composed of a senior Judge of the Industrial Court of Appeal to chair the panel and two senior Commissioners appointed by the Conciliation, Mediation and Arbitration Commission (CMAC), and the negotiation teams to represent both parties in undertaking the process of a national voluntary conciliation. The Government also issued legal notice No. 81 of 2023 on the Conciliation Rules which were negotiated upon and agreed to by the parties on a variety of issues including, inter alia, representation of the parties, quorum, scope of the conciliation, hearing of evidence, admission of witnesses and interaction with the media. The national voluntary conciliation had several meetings and hearings and held its last meeting on 26 July 2023. The final report of the conciliation panel was approved by the parties and signed off on 15 September 2023. At the outset, the Committee observes from the report of the conciliation panel the presence of some related issues that were not mentioned in the initial complaint. By submitting additional information to the Committee, the complainant has referred to other matters to be addressed during the conciliation procedure, including the outcome of the Independent Investigation Committee investigating the 2018 and 2019 action of the police regarding workers’ protests as reported to other ILO supervisory bodies. These matters have already been examined by the Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Standards of the International Labour Conference. Certain other matters have already been examined under the follow-up Case No. 2949. While the Committee examines essentially the matters raised initially in the complaint, it will consider including the examination of the effect given to its recommendations under Case No. 2949 in the future, as agreed by the parties to the complaint. It observes that the parties reached a settlement on a few issues during the voluntary conciliation, and in a number of cases the matter remained unresolved. In some instances, the parties agreed to avail themselves of the technical assistance of the Office for advice and non-binding opinion.
3. 389. The Committee also notes that ILO technical support was provided to the Government and the social partners during the first half of 2024 to draw up an implementation plan to address the issues in this case, and in Case No. 2949 concerning Eswatini, and monitor progress. The Committee welcomes the efforts by the Government and the social partners to review in the first instance the issues raised in the complaint with a view to their possible resolution at national level and trusts that the road map drawn up with the assistance of the Office and agreed by the parties to the complaint in August 2024 would be beneficial to assess progress.
4. Incidents involving police violence against protest actions and union members
5. 390. The Committee notes with deep concern the allegations pertaining to the use of violence by security forces and the army while handling peaceful trade union demonstrations. According to the complainant, violence occurred: (i) on 13 October 2021, when workers organized under the Swaziland Transport, Communication and Allied Workers Union engaged in a protest action in Luyengo city for improved terms and conditions of employment within the public sector and were violently dispersed; in the process Mr Sabelo Dlamini, a worker who was part of the demonstration, was shot and killed; and (ii) on 20 October 2021, when the Swaziland National Association of Teachers (SNAT), together with the Swaziland Democratic Nurses Union (SDNU) and the National Public Service and Allied Workers Union (NAPSAWU) organized a gathering to petition the Government on matters arising from their negotiations on terms and conditions of employment. They followed all the procedures laid down in the Public Order Act, 2017, and were granted a certificate of compliance by the Mbabane Municipal Council. The petition delivery was, however, prohibited by the police on the day of the action without following any due process of law and the protestors were brutalized by the police with tear gas canisters thrown into a bus carrying workers travelling from Piggs Peak resulting in many of them being injured as they were jumping out through the windows of the bus. Some were shot with rubber bullets and hit with police batons. In addition, a car branded as SNAT was shot at in its rear side with a live bullet. On 28 October 2021, Ms Winile Mlotsa, the First Deputy Secretary General of TUCOSWA and the General Secretary of the Swaziland Agriculture and Plantations Workers Union (SAPWU) was tortured by the army when she joined a group of about 50 workers who were to attend a planned peaceful protest action organized by TUCOSWA in Siteki town. According to the complainant, the bus carrying the workers was waylaid by the army and forced to drive to a secluded forest some 30 kilometres from Siteki town. The workers were then made to roll on muddy ground and beaten with sjamboks (heavy leather whips) and sticks. In the complainant’s view, State security personnel manning a public gathering are usually commanded by the police, which was in the present case aware of the violence against the workers by the army.
6. 391. The Committee notes the following submission of the Government to the conciliation panel and transmitted to it: (i) with regard to the shooting and killing of Mr Sabelo Dlamini on 13 October 2021 during a protest in the city of Luyengo, the matter could not be discussed in detail since the next of kin of the deceased have initiated a civil suit against Government. Otherwise, the police did investigate the events surrounding the circumstances under which the deceased passed on and do possess a report to be used in the court proceedings; (ii) concerning the allegation that the police indiscriminately and recklessly shot tear-gas canisters into a bus carrying workers from Piggs Peak town on their way to attend a gathering in Mbabane city, the Government denied the occurrence of such an event and submitted that proportionate force was used to turn back a crowd that intended to proceed with a gathering which had been prohibited by the National Commissioner of Police under the Public Order Act; and (iii) with regard to the allegation that workers were harmed on 28 October 2021 when the army intercepted them on their way to a protest action, and in particular that the First Deputy Secretary General of the complainant, Ms Winile Mlotsa, and many workers were beaten up and humiliated by the army after their bus was diverted into a secluded forest, the Government declared that there was no record of this occurrence since no complaint was opened with the nearby police station by the affected persons in order to trigger an appropriate investigation.
7. 392. The Committee must emphasize that the right to organize union meetings constitutes an important aspect of trade union rights. The Committee must also recall that, during trade union demonstrations, the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. Workers’ organizations should respect legal provisions on public order and abstain from acts of violence in demonstrations. The Committee would also like to recall that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation to their right of association constitutes a violation of the principles of freedom of association. The Committee would also like to draw the Government’s attention to the fact that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions. However, the principles of freedom of association do not protect abuses consisting of criminal acts while exercising protest action [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 217, 221, 121, 127 and 224]. The Committee expects the Government to ensure respect for the above.
8. 393. The Committee notes from the conciliation report that the parties agreed that the matters will be referred to the Commission on Human Rights & Public Administration/Integrity (CHRPA) to investigate the circumstances which led to the death of Mr Dlamini, and for appropriate investigations on whether there were any human rights violations that occurred during the October 2021 incidents. The Committee expects the Government to keep it informed of the outcome of the investigations and any follow-up given including, where appropriate, on violations identified and penalties imposed as disciplinary action against abuse of power by members of the police.
9. 394. The Committee also notes, from the report of the conciliation panel and the Government’s communication of September 2024, that the parties agreed to avail themselves of the technical assistance of the Office regarding the regulatory and practical issues concerning the handling of industrial action and public gatherings organized by trade unions. The Committee recalls that allegations of police violence while handling trade union demonstrations have been recurrent in the past years and that the Government has benefited from the technical assistance of the Office for the adoption and the dissemination of Codes of Good Practices for Industrial and Protest Actions (legal notice No. 202 of 2015), and on Gatherings (legal notice No. 201 of 2017) as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well-managed and in order to minimize unwarranted confrontations between protestors and members of the law enforcement agencies and municipal councils. Taking note of the recommendations of the national voluntary conciliation panel, the Committee expects that the Government will take measures without delay and in consultation with the social partners for the dissemination of the codes of good practices so that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice. The Committee requests the Government to keep it informed in this regard including, where appropriate, on violations identified and penalties imposed as disciplinary action against abuse of power by members of the police.
10. Banning of union gatherings
11. 395. The Committee notes with deep concern the allegation that since 2021 unions are constantly deprived of their right of assembly by decisions from the administration and the police: (i) in July 2021, TUCOSWA was prohibited by the police from proceeding with its planned petition delivery to the Prime Minister’s Office, without any notice to the municipal council concerned or any due process of law; (ii) in October 2021, the Ministry of Housing and Urban Development issued a statement banning the local municipal councils (local government authorities) from issuing permits for gatherings in all towns and cities. The ban affected all trade union gatherings. TUCOSWA was then notified that gatherings were banned in all urban authority jurisdictions. Similarly, the Police Commissioner informed TUCOSWA that an intended gathering countrywide was postponed sine die in the interest of public order, safety, and national security; (iii) in October 2021, SNAT, together with the SDNU and NAPSAWU were granted a certificate of compliance by the Mbabane Municipal Council in view of a gathering to petition the Government on matters arising from their negotiations on terms and conditions of employment. However, they were notified that the certificate was revoked the day before the intended gathering by the National Commissioner of Police under the provisions of section 9 of the Public Order Act, 2017, on the basis of having reason to believe that the gathering would endanger the maintenance of public order and public safety; (iv) in February 2022, TUCOSWA applied to the Municipal Council of Manzini for permission to gather, which was declined on the basis of the directive from the Ministry of Housing and Urban Development. TUCOSWA then applied for an order at the Magistrate Court challenging the decision of the Municipal Council of Manzini refusing the union’s application to gather. The magistrate declared the Municipal Council’s decision to be unlawful and null and void of force or effect. However, TUCOSWA is still denied permission to gather by the Municipal Council of Manzini notwithstanding the Court Order of the Magistrates Court; (v) in the midst of the voluntary conciliation meeting to resolve the issue in July 2023, the Government issued a public announcement, purporting a relaxation of the ban, thereby allowing the municipal councils, as of 18 July 2023, to issue permits for gatherings not exceeding 10 people. TUCOSWA considers that is not only a violation of Convention No. 87, but also of the Public Order Act, 2017, which provides that a gathering of not fewer than 50 people does not require a notice; and (vi) in August 2023, the police fired tear-gas canisters and rubber bullets at a peaceful gathering of members of the Swaziland Nursing Association (SNA) who had gathered to demand quality public health. The SNA had complied with the Public Order Act and had notified the Municipal Council of Mbabane of their intention to gather as required by the law. The Council never acted on the notice, and only upon inquiry did they inform the SNA that they had failed to get hold of the police to be part of the consultative meeting as envisaged by the Act. According to the complainant, in such instances, section 8(13) of the Public Order Act, provides that “if the local authority fails [to] invite the convenor to a consultative meeting or to comply with a demand contemplated in subsection (12), the convenor shall be deemed to have complied and shall have a right to hold a gathering in the absence of a compliance certificate”. The police were, however, present in large numbers and armed. They demanded that a compliance certificate be produced for the gathering, and they further pronounced that the gathering was more than the directed number of 10 people allowed to gather. They then, without provocation, assaulted the workers who had joined the gathering. According to TUCOSWA, this illustrates that the right to peaceful assembly remains banned and that the laws regulating gatherings are suspended in favour of Government administrative orders.
12. 396. The Committee notes from the Government’s submission to the conciliation panel that the application to convene the protest march in a public space in July 2021 was declined on the grounds that public gatherings were not permitted during this period due to the COVID-19 protocols in force at the time. The Government also submitted that in relation to the prohibition by the police for the SNAT, SDNE and NPSAWU to petition the Government in October 2021 despite a certificate of compliance having been granted by the Mbabane Municipal Council, that the compliance certificate was revoked the day before the intended gathering by the National Commissioner of Police under the provisions of section 9 of the Public Order Act, 2017, on the basis of having reason to believe that the gathering would endanger the maintenance of public order and public safety. Furthermore, with regard to the request of TUCOSWA that the directive made by the Minister of Housing and Urban Development be publicly withdrawn – by a public statement of the Government – in the same manner as it was issued, the Government submitted that the instruction that was issued to local authorities or municipal councils was not meant to suspend the operation of the public order laws. This instruction was issued in the context of the widespread public unrest, riots and looting which were happening countrywide starting from June 2021. Therefore, the Government is of the view that this instruction is no longer in force as proven by the fact that municipal councils were again entertaining applications made by interested organizations for gatherings under the terms of the Public Order Act, 2017. Lastly, the Government indicated to the conciliation panel that this matter also raises the question of harmonizing the differences in interpreting the provisions of section 9 of the Public Order Act, particularly on the powers of the National Commissioner of Police to prohibit a gathering in the event that (s)he has reason to believe that the gathering would endanger the maintenance of public order and public safety. Otherwise, the Government maintained that the right to assembly remains fully enshrined and protected by the law.
13. 397. The Committee notes that, in its latest communication, the Government indicates that it is currently working on a public statement to be issued providing clarity on the issue of holding public gatherings. It reiterates that public gatherings continue to be allowed in the country and are held, including protest marches to deliver petitions at ministries and the May Day celebrations. Lastly, the Committee notes the Government’s indication that any organization which considers that it has been unreasonably refused the authorization to gather in a public space can approach the Principal Magistrate Court of the locality for a review of the decision of the local authority.
14. 398. The Committee notes that the report of the conciliation panel indicates that the parties agreed that this matter be referred to the Office for an advisory non-binding opinion. The opinion should cover the question as to “what processes should precede the prohibition of a gathering in a public space that has been approved under the terms of the Public Order Act, 2017, after consultation and where a certificate of compliance has been issued taking into account the relevant ILO Conventions”.
15. 399. The Committee notes that informal opinions of the Office are provided without prejudice to any positions or conclusions that the ILO supervisory bodies may make on the matters raised. The Committee, on the other hand, engages in constructive tripartite dialogue to promote respect for freedom of association in law and in practice through conclusions and recommendations in specific cases intended to guide governments and national authorities for discussion and action in the field of freedom of association and the effective recognition of the right to collective bargaining.
16. 400. The Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organizers of a demonstration concerning the place where it will be held and the manner in which it will take place. It is for the government, which is responsible for the maintenance of public order, to decide whether meetings, including trade union meetings, may, in particular circumstances, endanger public order and security, and to take any necessary preventive measures. And while trade unions should respect legal provisions which are intended to ensure the maintenance of public order; the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their meetings in full freedom [see Compilation, paras 208, 218, 225 and 226].
17. 401. Considering the elements provided by both the complainant and the Government on this matter, and the latest indication from the Government that it is working on a public statement to provide clarity on the issue of holding public gatherings, the Committee urges the Government to take the necessary measures to clarify to all administrative and enforcement authorities concerned of the lifting of the October 2021 instruction from the Ministry of Housing and Urban Development banning local municipal councils from issuing permits for gathering. Recalling that the Public Order Act, 2017, permits the gathering of not more than 50 people without notice requirements, the Committee also urges the Government to provide an explanation on the objective of the directive issued in July 2023 to the municipal councils to issue permits for gatherings not exceeding 10 people, and to take immediate steps to suppress such limitation which, as such, is contrary to the Public Order Act and impedes trade unions from fully exercising their right to organize public meetings and demonstrations in accordance with the principle of freedom of association. The Committee requests the Government to keep it informed in this regard.
18. 402. Furthermore, the Committee requests the Government to keep it informed of any consultation engaged with the social partners with the technical support of the Office to address the conciliation panel’s requests, namely : (i) what processes should precede the prohibition of a gathering in a public space that has been approved and where a certificate of compliance has been issued, taking into account the relevant ILO Conventions; and (ii) the interpretation of section 9 of the Public Order Act, 2017, on the powers of the National Commissioner of Police to prohibit a gathering in the event that (s)he has reason to believe that the gathering would endanger the maintenance of public order and public safety.
19. 403. The Committee notes the allegation of the bashing of Ms Maureen Nkambule, Secretary General of the Swaziland Electricity Supply, Maintenance and Allied Workers Union (SESMAWU) by a State-owned enterprise in the electricity sector from January 2019 to December 2021 which coincided with her dismissal by the enterprise on charges of breach of confidentiality/media statements and an allegation of riotous behaviour. According to the information provided by the complainant, the company decided to sanction the union leader on the grounds of inciting a strike, which the company considers illegal in a sector providing an essential service. The Committee notes the allegation that the disciplinary measure of dismissal manifestly failed to take into account the evidence provided by Ms Nkambule and the SESMAWU, which showed that she actively participated in negotiations with management to resolve the crisis and, on the contrary, tried to dissuade the workers from going on strike. She was absent and not involved during the strike decided one month later by the employees, despite the union’s communiqué recalling the essential nature of the service provided by the company. The complainant also denounced the discriminatory nature of the dismissal of Ms Nkambule and the clear demonstration of victimization with regard to the different treatment received by the other workers who had instigated the strike, who had only been given a warning and had remained in the company.
20. 404. The Committee observes that the Government submitted that the dismissal of Ms Nkambule is an individual labour law dispute between an employer and an employee which was rightfully referred by the aggrieved employee to the legally recognized labour dispute resolution structures (CMAC and the Industrial Court) where it remains pending. In the Government’s view, it would be best to allow that process to be exhausted.
21. 405. The Committee, not wishing to enter into the substance of a labour dispute pending before court, recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. In addition, the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end, workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language. The Committee also systematically recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned. [see Compilation, paras 1117, 236, 1138 and 1139].
22. 406. Consequently, in view of the time that has elapsed since the dismissal of Ms Nkambule (in December 2021), the Committee must express its deep concern about the length of time before the courts to examine this case of alleged anti-union dismissal. Recalling that justice delayed is justice denied, the Committee expects the courts to rule without further delay in this case. The Committee also expects that the Government will ensure that, should the dismissal of Ms Nkambule prove to have been on anti-union grounds, the trade unionist is reinstated with the payment of all outstanding wages. If reinstatement is not possible for objective and compelling reasons, adequate compensation must be awarded as reparation for all injury suffered and to prevent any recurrence of such acts in the future. The Committee requests the Government to keep it informed of the outcome of the Court ruling and of any follow-up given to it, and to provide information on the current situation of Ms Nkambule, including whether she is still holding trade union office.
23. 407. The Committee takes note of the case of Mr Mcolisi Ngcamphalala, a SNAT official, who was allegedly arrested in January 2019 for jaywalking with a colleague while wearing SNAT branded clothes. They were on their way to an activity organized by TUCOSWA when they were arrested. The complainant alleges that the arrest of Mr Ngcamphalala was an act of victimization and intimidation. In the complainant’s view, this is supported by the excessive time it has taken to hear and conclude a jaywalking case. Investigations conducted by TUCOSWA reflect that the matter was heard in Manzini and later transferred to Matsapha, to which the accused’s attorney objected. The matter was last heard in 2019. After the appearance of the police on this complaint at the conciliation, summonses were issued for Mr Ngcamphalala in July 2023 to appear in court for his alleged jaywalking charges dating back to 2019. According to the complainant, the case has not been finalized and the Government continued to refuse to drop the charges despite their clear trumped-up nature. The complainant expresses its concern that there is a likelihood that Mr Ngcamphalala may be ultimately found guilty, and his services as a teacher terminated on the basis of a five-year old jaywalking charge. The Committee notes from the Government submission on this case that Mr Ngcamphalala was charged for jaywalking and resisting arrest. The Government confirmed that his case is still pending before the Manzini Magistrate Court (Case MZT69/2019). and he is legally represented in the criminal prosecution and has already pleaded to the charges and therefore he is now entitled to a verdict.
24. 408. In view of the time that has elapsed since the arrest of Mr Ngcamphalala (in January 2019), the Committee must express its deep concern about the length of time that this matter has been pending before the courts. Recalling that justice delayed is justice denied, the Committee firmly expects the courts to rule without further delay in this case and that the allegations of the anti-union nature of the charges will be duly considered. The Committee requests the Government to keep it informed of the outcome of the Court ruling, any consideration of the allegations of the anti-union nature of the charges and of any follow-up given to it. The Committee requests the Government to provide information on the current situation of Mr Ngcamphalala, including whether he is still holding trade union office.
25. 409. The Committee also notes the allegations concerning another critical situation where a union leader, Mr Nkomondze, the Second Deputy President of TUCOSWA, is deprived of his rights to represent the union. Mr Nkomondze is employed by a State-owned enterprise in the water sector. According to the complainant, since his election, the enterprise has allegedly systematically refused to allow his attendance at any of the union’s activities. Despite interventions of the Labour Commissioner, the last one in February 2024, the employer maintains its position that they will never allow him to attend to any TUCOSWA business. According to the complainant, this position by a State-owned enterprise has caused the TUCOSWA to commence a discussion within its structures on whether to continue sitting on all the tripartite boards where it is represented as there is a likelihood that the other employers may follow the lead of the enterprise. In the complainant’s view, this action is in the main intended to intimidate and victimize not only Mr Nkomondze but any of his workmates from taking up positions within the union in future elections. The Committee observes that despite a legal notice issued by the Minister of Labour legalizing the operations of the conciliation team with Mr Nkomondze included, the conciliation panel observed that on a number of occasions the conciliation meetings were delayed due to the refusal of his employer to release him from work as the complainant refused to proceed in his absence and raised concerns about the general outlook of being released for union duties at his workplace. The Committee notes the Government’s acknowledgement that the difficulties faced were that Mr Nkomondze is an executive member of TUCOSWA but not of the enterprise union, nor is he a shop steward in the enterprise. While the employer has actually signed a Recognition and Procedural Agreement with the enterprise union, which provides for up to 30 days leave of absence on union business to elected union executive members, including shop stewards, Mr Nkomondze is not covered in the Recognition and Procedural Agreement which does not extend the rights accruing to the union executive members and shop stewards at enterprise level, to the Federation or Confederation. In the circumstances, the enterprise was unable to release Mr Nkomondze. According to the Government, resolving this impasse lies on amending the Recognition and Procedural Agreement, something which is the sole preserve of the social partners to the Recognition Agreement, and any attempt of interference or imposition by Government on this matter would conversely attract a violation of Conventions Nos 87 and 98. In this case, the Committee appreciates that the Government and the Chairperson of the conciliation panel have intervened and sought to intercede with the employer to seek the release of Mr Nkomondze and have secured an ad-hoc arrangement for his participation to the voluntary conciliation process.
26. 410. Furthermore, the Committee duly notes the recommendation made by the conciliation panel while examining these cases of alleged anti-union discrimination, that there seems to be an underlying concern that the protection of union officials under the law may not be adequate and that the parties could refer the general principle of protection of trade union officials to the Labour Advisory Board (LAB) for an open discussion regarding the adequacy of the current protection of union officials and any improvements required to provide for the protection of trade union officials from victimization. The LAB, with its tripartite nature, would, according to the conciliation report, be the best platform for the social partners to deal with this issue. The Committee requests the Government to keep it informed of any steps taken to follow up on this recommendation of the conciliation panel and engage with the social partners in this regard, and to provide a report of the LAB’s consideration of this matter once concluded.
27. 411. Given the magnitude of the issues raised in this case, the Committee welcomes the technical assistance provided by the Office to the Government and the social partners in developing a time-bound road map to address the issues. The Committee is encouraged by the commitment of the parties who have completed the voluntary conciliation procedure. However, recalling that the issues raised in this complaint relate to impediments to the exercise of the fundamental right of freedom of association, including the killing of a worker during a protest action, and that some of the issues are being examined in various supervisory bodies of the Organization, the Committee can only urge the Government to take the necessary steps to deal promptly with its recommendations and to report tangible progress as soon as possible.
28. 412. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.