HUMAN AND TRADE UNION RIGHTS COMMITTEE
Special hearing, Harare (Zimbabwe)
18 January 1999
TRADE UNION RIGHTS VIOLATIONS IN SOUTHERN AFRICA
The Current Situation
Freedom of Association
Freedom to Organise and Bargain Collectively
Botswana (page 3)
Lesotho (pages 3-5)
Malawi (pages 5-6)
South Africa pages 6-7)
Swaziland (pages 8-9)
Zambia (pages 9-10)
Zimbabwe (pages 10-13)
A Specific Trade Union Rights Violations
Botswana 1995, 1996, 1997 (pages 14-15)
Introduction
Trade union rights are increasingly under threat throughout the world. Recent events in the Southern African region clearly illustrate this trend. Repeated rights violations and threats from the authorities have become all too common occurrences, especially in Zimbabwe, Malawi, Lesotho and Swaziland.Perhaps the only bright spot in the sub-region is in South Africa where, following the demise of the end of the minority apartheid government, responsible industrial relations practices are taking root and trade union rights respected. Looking back to the ICFTU’s Survey of Violations of Trade Union Rights of the 1980’s, South Africa was consistently listed as one of the world’s "worst case" countries with tens of thousands of workers arrested, murdered, dismissed and deported for their union activities. During recent years, South Africa is not even cited in the survey.
Recent Violations
The same cannot be said for the rest of the sub-region. In 1987 Zambia’s union leaders Fred Chiluba and Newstead Zimba had their passports confiscated "for security reasons." Today, as President and Minister of Labour respectively, these two men are threatening the current ZCTU leadership. Privatisation of major industries, massive public sector redundancies and delayed wage payments have led to union/government contrations throughout 1998 In Swaziland the homes of SFTU leaders were raided by police late in November 1998 in an attempt to link them to criminal activities The union’s General Secretary Jan Sithole and other leaders were briefly detained in intimidation attempts. Zimbabwe union leader Morgan Tsvangirai was repeatedly arrested in October 1989 and accused "of acting as an agent of the South African Government in encouraging disruptive strikes." A decade later official hostility to a free labour movement remains unchanged. In recent weeks A second general strike in Noveber 1998 to demand renewed social dialogue only made matters worse. The Zimbabwe Central Intelligence Organisation (CIO) has begun to monitor the ZCTU’s activities while looking at means of "delegalising" the union in the face of mounting social unrest. Malawi’s trade unionists, helping to topple of President Banda’s dictatorship in 1994, are once again facing repression from the new democratically elected government.This summary of recent trends which are shaping the trade union rights climate in Southern Africa is presented to stimulate discussion at the 18 January 1999 hearing on rights violations in Harare (Zimbabwe). The material focuses on trade union rights violations—freedom of association and the right to organise and bargain collectively—as guaranteed in ILO Conventions No. 87 and No. 98. For further reference, excerpts from the ICFTU Survey of Violations of Trade Union Rights for the years 1996, 1997 and 1998 are included. While these events provide a rather bleak picture, it is essential to assess how greater solidarity among working people on sub-regional, continental and international levels can turn the tide and gain full respect for universally recognised trade union rights.
BOTSWANA
Freedom of Association
The Constitution provides for the right of association. In practice all workers, with the exception of government employees, are free to join or organise unions of their own choosing. Government workers may form associations that function as quasi-unions but without the right to negotiate wages. The industrial or wage economy is small, and unions are concentrated largely in the mineral and to a lesser extent in the railway and banking sectors. There is only one major confederation, the Botswana Federation of Trade Unions (BFTU), but there are no obstacles to the formation of other labour federations.
The Government ratified nine International Labour Organization (ILO) conventions in 1997, including five characterised as core human rights conventions.
Unions are independent of the Government and not closely allied with any political party or movement. Unions may employ administrative staff, but the law requires elected union officials to work full time in the industry the union represents. This severely limits union leaders' professionalism and effectiveness and has been criticised by the ICFTU.
The law also severely restricts the right to strike. Legal strikes are theoretically possible after an exhaustive arbitration process, but in practice none of the country's strikes has been legal. Unions may join international organisations. The Minister of Labour must approve any affiliation with an outside labour movement, but unions may appeal to the courts if an application for affiliation is refused.
Freedom to Organise and Bargain Collectively The Constitution provides for collective bargaining for unions that have enrolled 25 percent of a labour force. In reality only the mineworker unions have the organisational strength to engage in collective bargaining.Workers may not be fired for union-related activities. Dismissals may be appealed to labour officers or civil courts, but labour offices rarely do more than order 2-months' severance pay.
Botswana has only one export processing zone--in the town of Selebi-Phikwe--which is subject to the same labour laws as the rest of the country.
LESOTHOFreedom of Association
Workers have the legal right to join or form unions without prior government authorisation, with the exception of civil servants. The Labour Code specifically prohibits civil servants from joining unions. The Government regards all work by civil servants as essential. In a judgement by the Lesotho High Court in June concerning a 2-year-old petition filed by the Lesotho Union of Public Servants (LUPE) against the registrar of law, Chief Justice Kheola dismissed LUPE's application on the grounds that it was not consistent with the labour code. The LUPE filed an appeal. The Ministry of Labour lacks adequate numbers of investigators to systematically review these claims by trade unionists. Little government action has been taken to remedy this situation.
Under the 1993 Labour Code all trade union federations require government registration. There are two small trade union federations that rarely co-operate with each other, the Lesotho Trade Union Congress and the Lesotho Federation of Democratic Unions. Neither is formally affiliated or tied to a political party.
The labour and trade union movement is weak and fragmented. There are several small unions in the public and industrial sectors but no unified trades union congress. There are multiple unions competitively organising small numbers of workers in the same sector. Overall, unionised workers represent only about 10 percent of the work force. Consequently, efforts toward collective bargaining and tripartite policy-making are not amenable to strong trade union influences.
Many employers inhibit union representatives and organisers from gaining access to employer premises to organise workers or represent them in disputes. A large percentage of the male labour force works in the gold and coal mines of South Africa. The remainder are primarily engaged in traditional agriculture. A majority of Basotho mine workers are members of the South African National Union of Mineworkers (NUM). However, as a foreign organisation, the NUM is not permitted to engage in union activities in Lesotho.
No legally sanctioned strike has occurred since independence in 1966. Legal protection for strikers against retribution is not always enforced in cases of illegal strikes. In August 1997, workers at the state-owned Lesotho Telecommunications Corporation (LTC) began an industrial action that led to a lock-out, but officials called it an illegal strike. The LTC Board of Governors filed an urgent application in the Lesotho High Court requesting the Court to bar workers from the LTC premises. In October the High Court ruled in favour of the Board of Governors that these employees were illegally on strike. Subsequently, the Board fired over 300 technicians and other auxiliary staff members and denied them severance and other benefits. The workers appealed for a reversal against this unfair dismissal. The Government was successful in negotiating the reinstatement of employees following several "illegal" strikes in 1995 and 1996. Security forces violently suppressed strikes in the textile, garment, and construction industries during 1994 and once during 1996.
There are no governmental restrictions on international affiliations or contacts by unions or their members.
Freedom to Organise and Bargain Collectively
All legally recognised trade unions in principle enjoy the right to organise and bargain collectively. In practice the authorities often restrict these rights and employers are often not co-operative. Employees are often threatened with expulsion and loss of employment once they join unions. There is credible evidence that some employers in the textile and garment sector engage in the use of blacklists to deny employment to workers who have been fired by one employer within that sector. Although there was some collective bargaining activity between unions and employers to set wage and benefit rates, employers generally continued to set wage rates through unilateral action.There is a large backlog of industrial dispute cases in the Labour Court, which has only one labour judge who is only now dealing with cases filed in 1995.
There are several industrial zones, in which mostly textile and apparel firms engage in manufacturing for export. All national labour laws apply in these industrial zones.
MALAWIFreedom of Association
Although signed into law in May 1996, the Labour Relations Act did not enter into force because the Ministry failed to publish a notice establishing the date the legislation was to take effect. Thus, labour issues continue to be covered by the old legislation. Workers have the legal right to form and join trade unions, but unions must register with the Ministry of Labour and Manpower Development (MOLMD). Unionisation is on the rise, but resistance on the part of many employers remained. Army personnel and police may not belong to trade unions, but other civil servants are allowed to form unions. There were 13 registered trade unions. Given the low percentage of the work force in the formal sector (about 12 percent), plus the lack of awareness of worker rights and union benefits, only a minuscule percentage of the work force are union members. Unions are independent of the Government, parties, and other political forces. Although there are no restrictions on the number of union federations, Malawi has only one, the Malawi Congress of Trade Unions (MCTU). All unions are affiliated with it. According to the MOLMD, there are no unusually difficult registration procedures that would prevent a trade union from registering.
Members of registered unions in "essential services" have the right to strike after having carried out prescribed procedures. Essential services are nowhere specified; they are determined by the Minister of Labour. The Trade Union Act requires that labour disputes in essential services be reported in writing to the Minister of Labour, who then attempts to negotiate a settlement. He may refer the case to a tribunal within 28 days of receiving the dispute report if it is not possible to reconcile the parties. The law implies that if a trade dispute has gone through this process, and if it has not been resolved or referred to a tribunal, workers in essential services may strike. There were several strikes, especially in the public sector, with no clear agreement on which ones were legal. As the Trade Union Act requires that unions must approve strikes by secret ballot, all the strikes may have been illegal.
In April 1997 the Government intimidated civil servant strikers by, among other things, dispersing them with tear gas and police dogs, prohibiting them from assembling peacefully outside their places of work, arresting activists on dubious grounds, and suspending or transferring strike leaders in an effort to break the union. The civil servants returned to work without resolving any of the outstanding issues. On 24 January 1998 the MCTU President, General Secretary and Deputy General Secretary were arrested by armed police following the cancellation of a union meeting to discuss grievances and dispersal of the assembled workers. They were held 24 hours without charges.
Laws do not specifically prohibit retaliation against strikers. There is no prohibition on actions against unions that are not legally registered. Arbitration rulings are legally enforceable. Unions may form or join federations and affiliate with international organisations with government permission.
Freedom to Organise and Bargain Collectively
Unions have the right to organise. The right to bargain collectively, although practised, is only implied and not expressly protected by law.
The Ministry of Labour sets minimum wage rates based on recommendations of the Tripartite Wages Advisory Board. The law prohibits antiunion discrimination by employers, but there are no effective mechanisms for resolving complaints, and there is no legal requirement that employers reinstate workers dismissed because of union activities.
In August 1995, Parliament approved legislation to establish export processing zones (EPZ's); six were operational by year's end. The full range of labour legislation applies to the EPZ's.
Freedom of Association
The Constitution provides for freedom of association and the right to strike and these rights are given statutory effect in the Labour Relations Act (LRA) which went into effect in November 1996. All workers in the private sector are entitled to join a union. Most workers in the public sector, with the exception of members of the South African National Defence Force, the National Intelligence Agency, and the South African Secret Service, are also entitled to join a union. No employee can be fired or discriminated against because of membership in or advocacy of a trade union. Union membership has declined in the last few years as a result of job layoffs and a fairly stagnant job creation rate. According to official estimates, there are 248 registered trade unions and between 30 and 40 unregistered trade unions, with a total approximate membership of 2.9 million persons, about 30 percent of the formally employed, economically active population. The unemployment rate by comparison is estimated at between 30 and 35 percent.
The largest trade union federation, the Congress of South African Trade Unions (COSATU), is aligned with the African National Congress (ANC) and the South African Communist party (SACP). Its closest rival, the Federation of Unions of South Africa (FEDUSA), is an apolitical, multiracial federation formed in 1997 by merging several smaller worker organisations. A smaller labour federation, the National Council of Trade Unions (NACTU), while officially independent of any political grouping, has close ties to the Pan Africanist Congress (PAC) and the Azanian Peoples Organisation (AZAPO).
The LRA seeks to create an industrial relations regime that is stable and recognises that basic worker rights need to be protected. The act protects workers against unfair dismissal, recognises their right to form trade unions, enshrines the right to strike, and establishes a simple set of procedures that protect striking workers from the threat of dismissal. Essentially, for a strike to proceed, all that is required is that a dispute be referred for conciliation. If conciliation fails to resolve the dispute, then a trade union is entitled to advise an employer of an intent to strike. Such a strike is not liable to criminal or civil action. Organised labour also has the right to engage in "socio-economic protest," whereby workers can demonstrate, without fear of losing their jobs, in furtherance of broader social issues. The LRA also allows employers to hire replacement labour for striking employees, but only after giving 7 days' notice to the striking trade union. Employers have the right to lock out workers if certain conditions are met.
The LRA applies to public sector as well as private sector workers. Public sector employees, with the exception of essential services and the three components of the security services, are also provided with the right to strike. While this right was first asserted in the Public Sector Labour Relations Act of 1993, the LRA simplifies and rationalises collective bargaining in the public sector and the resort to industrial action.
The Government does not restrict union affiliation with regional or international labour organisations.
Freedom to Organise and Bargain Collectively
The law defines and protects the rights to organise and bargain collectively. The Government does not interfere with union organising and generally has not interfered in the collective bargaining process. The LRA statutorily entrenches "organisational rights," such as trade union access to work sites, deductions for trade union subscriptions, and leave for trade union officials, which strengthen the ability of trade unions to organise workers.
Union participation as an equal partner with business and government in the National Economic Development and Labour Council (NEDLAC), a tripartite negotiating forum, ensures a direct voice for labour in the formulation of economic, social, and labour policy.
The LRA allows for the establishment of workplace forums that are intended to promote broad-based consultation between management and labour over issues such as work organisation, corporate downsizing, and changes in production processes. The forums, in order to receive statutory protection, can be established by trade unions in businesses with more than 100 employees only. While to date, trade unions in less than a handful of factories have established workplace forums, the intent of the law is to build wide support within the trade union movement and business for such co-operative workplace relationships.
To further reduce the adversarial nature of labour relations, the LRA also created a Commission for Conciliation, Mediation, and Arbitration (CCMA). Since its inception in November 1996, the CCMA has successfully resolved many disputes referred to it and remains critical to the emergence of a less confrontational business climate. The CCMA is also gradually beginning to play an interventionist role by getting involved in disputes before they deteriorate into a full-fledged strike or lockout. A Labour Court and a Labour Appeals Court are other important creations of the LRA. The labour court has jurisdiction to resolve disputes that the CCMA is unable to mediate to the satisfaction of both parties. Notwithstanding the existence of the CCMA and specialist courts for labour disputes, the thrust of industrial relations is to minimise the need for judicial intervention in labour relations leaving it to the contending parties themselves to resolve disputes whenever possible.
Freedom of Association
The 1996 Industrial Relations Act (IRA) permits workers in all sectors of the economy, including the public sector, to join unions. It permits unions to associate freely in the context of traditional trade union concerns. However, the IRA imposes criminal penalties for union activity outside core union concerns, specifically on social or political issues, and it provides that the Government may suspend or close down unions that engage in such noncore labour matters. It prohibits trade union federations (but not individual unions) or their officers from engaging in any act that "causes or incites" the slowdown or cessation of work or economic activity, or to act in any way that might be construed as a "restraint of trade," with 5 years' imprisonment the maximum penalty for such violations. Employers have equivalent penalties for unauthorised lockouts. The IRA confines unions and employer organisations to single industries, and does not permit organisation across economic and industrial sectors, contrary to ILO Convention 87. The main trade union federation is the Swaziland Federation of Trade Unions (SFTU). A second trade union federation is the Swaziland Federation of Labour (SFL), which broke away from the SFTU in 1993 and gained formal recognition from the Government in 1994. In November a tripartite drafting committee, with assistance from the ILO, was formed to bring the IRA in line with internationally-recognised worker rights.
Unions are free to draw up their own constitutions within the framework of the IRA. The act specifies a number of provisions that must be addressed in a constitution, including the election of officers by secret ballot. The Labour Commissioner must approve the union constitution, and he can strike out or amend provisions that violate the law. The Government may dissolve unions that fail to maintain proper registration with the Labour Commissioner without recourse to judicial review. In April 1997 several unions, including the SFTU, were suspended for not submitting required financial statements, although the SFTU'S suspension was subsequently revoked.
The IRA details the steps to be followed when disputes arise and defines legal or illegal strikes. The act empowers the Government to mediate employment disputes and grievances and to enjoin a union from striking. When disputes arise, the Government often intervenes to try to discourage of a strike, which may not be called legally until all avenues of negotiation have been exhausted and a secret ballot of union members has been conducted. The law prohibits strikes in "essential" services, which cover electricity, water, firefighting, health, sanitation, telephone, telegraph, and broadcast, as well as many civil service positions.
Strikes, usually over wages and benefits, or dismissal of fellow workers occur. In February 1997 the SFTU conducted a mass stay away related to 27 demands presented to the Government in 1994, including calls for fundamental political change. These demands addressed a wide range of issues, including recognition of affirmative action, a national uniform minimum wage, an end to discrimination against women, the provision of better housing for workers, inclusion of worker representatives in constitutional discussions, and the lifting of the 1973 decree that suspended the Constitution and outlawed political parties. The stay away lasted 4 weeks and primarily affected the large sugar and pulp plantations and industries. Immediately prior to the planned stay away action, four labour leaders were arrested under a portion of the 1963 Public Order Act that had been made a nonbailable offence the previous day. They were acquitted by trial and released 26 days later. During the stay away police shot six people, wounding one seriously, and detained and beat labour and political activists. The SFTU conducted a 3-day stay away for similar motives in October 1997. A wage-based teachers' strike lasted 6 weeks in October and November, during a key examination period, without violence. The charges against three labour leaders from the 1996 stay away remains pending.
In response to a complaint by the ICFTU (initiated by the SFTU), the ILO Committee of Experts (COE) has noted to the Government discrepancies between the IRA and ILO Convention 87 on Freedom of Association and ILO Convention 98 on the Right to Organise and Bargain Collectively. The COE concerns include the powers accorded government officials to control union activity and the strictures on the ability of workers to form unions and associate with other unions at home and abroad. The Government agreed in August to amend the IRA and formed in November a tripartite redrafting committee that included employers, labour officials, and an ILO adviser.
Freedom to Organise and Bargain Collectively
The IRA provides for the right to organise and bargain collectively and outlaws antiunion discrimination. Collective bargaining is widespread; approximately 80 percent of the formal private sector is unionised. The law obliges employers to recognise a union when it achieves over 50 percent membership among employees. Employers must allow representatives of legally recognised unions to conduct union activities on company time. The Industrial Court may refuse to register collective bargaining agreements in the event of nonobservance of any requirement of the IRA. The IRA prohibits trade union federations or their officers, but not individual unions, from inciting any slowdown of work or economic activity or acting in any way that might be construed as a restraint of trade. It provides equivalent penalties to employers in the case of unauthorised lockouts.
Disputes are referred to the Labour Commissioner and the Industrial Court, if necessary. Although many employers resist recognition and force the issue to the Industrial Court, the Court generally rules in favour of the unions in these cases. In the case of unfair dismissal, the Court may order reinstatement and compensation to the employee as well as a fine to the employer. Union leaders made credible charges that management in various industries dismissed workers for union activity. The Government sometimes instigates such dismissals.
ZAMBIAFreedom of Association
The Constitution provides for the right of citizens to form trade unions, and approximately 60 percent of the 300,000 formal sector workers are unionised. Fourteen of the country's 19 large national unions, organised by industry or profession, are affiliated with the Zambia Congress of Trade Unions (ZCTU). The ZCTU is democratically operated and, like its constituent unions, is independent of any political party and the Government. The Mine Workers Union of Zambia and four other ZCTU constituent unions broke from ZCTU and have established a rival umbrella organisation.
The 1993 Industrial and Labour Relations Act (ILRA) re-established the "one industry, one union" principle. The Bankers Union of Zambia was duly registered with the Government in 1993 but has been unable to operate because the employers recognise the existing Zambia Union of Financial and Allied Workers. In November 1993, the Ndola High Court ordered the Government to register the Secondary School Teachers Union of Zambia. The Government continues to argue that the Zambia National Union of Teachers represents secondary school teachers and has administratively delayed recognition of the new secondary teachers union.
On 9 March 1998 the ZCTU called a public sector strike to protest a two-year unilaterally decided freeze in the public service wage increment. The authorities declared the stay-away illegal and threatened to dismiss strikers and to deregister their unions. Soldiers were deployed at government offices.
All workers have the right to strike, except those engaged in essential services, the Zambia Defence Force, the judiciary, the police, the prison service, and the Intelligence Security Service. The ILRA defines essential services as power, medical, water, sewerage, firefighting, and certain mining occupations essential to safety. It permits strikes only after all other legal recourse has been exhausted, and in practice all work stoppages during the year were illegal. The ILRA prohibits employers from retribution against employees engaged in legal trade union activities. Workers engaged in illegal strikes do not enjoy this protection.
By a majority vote of its members, a union may decide on affiliation with the ZCTU or with trade unions or organisations outside Zambia.
Freedom to Organise and Bargain Collectively
The ILRA provides for the right to organise and bargain collectively. Employers and unions in each industry negotiate collective bargaining agreements through joint councils in which there is no government involvement. Civil servants and teachers, as public officials, negotiate directly with the Government. Collective disputes are first referred to a conciliator or a board of conciliation. If conciliation fails to resolve the dispute, the parties may refer the case to the Industrial Relations Court or, in the case of employees, vote to strike. In practice, the industry joint councils function effectively as collective bargaining units.
The ILRA prohibits antiunion discrimination by employers against union members and organisers. An employee who believes that he has been penalised for union activities may, after exhausting any existing administrative channels for relief, file a complaint with the Industrial Relations Court. This Court has the power to order appropriate redress for the aggrieved worker. The complainant may appeal a judgement of the Industrial Relations Court to the Supreme Court. In practice, the Court often orders employers to reinstate workers found to have been the victims of discrimination.
Freedom of Association
The 1985 Labour Relations Act (LRA) provides private sector workers with freedom of association and the right to elect their own representatives, publish newsletters, and set programs and policies that reflect the political and economic interests of labour. Workers are free to form or join unions without prior authorisation. The LRA allows for the existence of multiple unions per industry, provided that each is registered with the Ministry of Public Service, Labour, and Social Welfare (MPSLSW). While the Government may deregister individual unions, the High Court has ruled that the LRA does not give the Minister the power to suspend or deregister the national umbrella labour confederation, the Zimbabwe Congress of Trade Unions (ZCTU).
Approximately 20 percent of the formal sector work force belongs to the 33 unions that form the ZCTU. ZCTU officers are elected by delegates of affiliated trade unions at congresses held every 5 years. While the Government encouraged the ZCTU's formation, anticipating that it would form the labour arm of ZANU-PF, it no longer directly influences ZCTU actions. The Government and the ZCTU often clash on economic policy, particularly the Economic Structural Adjustment Program (ESAP). The Government usually does not consult either the ZCTU or employers before implementing policy decisions that affect the workplace which often results in reactions that disrupt labour relations, promote uncertainty and strikes. Following the Government's efforts in December to impose huge income and other tax increases without consultation, the ZCTU organised a nation-wide, 1-day work stoppage, the most successful industrial action in Zimbabwe's history. While thousands demonstrated peacefully in most cities throughout the country, the aggressive police tactics led to street violence in Harare. The ZCTU secretary general who organised the work stoppage was attacked and badly beaten in a raid on his office 2 days later.
On 3-4 March 1998 the ZCTU called a two-day mass stay-away to demand the scrapping of a 2.5% sales tax and a 15% tax on pension profits. The action was highly successful in spite of heavy-handed threats from the Government of punitive measures. ZCTU headquarters in Bulawayo were burned.
The LRA allows for the formation of multiple national federations. A second umbrella labour organisation, the Zimbabwe Federation of Trade Unions (ZFTU), was launched in October 1996 with the stated purpose of providing an alternative of the ZCTU. The new organisation states that its goal is to work in collaboration with the Government, and it is openly critical of the ZCTU. The ZFTU's origin, leadership, and membership remain unclear.
Public servants and their associations, the Public Service Association (PSA), the Zimbabwe Teachers Association (ZIMTA), and the Zimbabwe Nurses Association (ZINA), are not covered by the provisions of the LRA. Instead, their conditions of employment are provided for under the Constitution. Although civil servants are constitutionally barred from forming unions, in 1995 ZIMTA stated its intention to affiliate with the ZCTU and the PSA. All public servants are deemed essential and are prohibited from striking. Nonetheless, a nation-wide, civil servant strike rocked the country in August 1996, followed by a public sector doctors and nurses strike in October 1996. Although the Government declared the strikes illegal, arrested worker representatives, and ordered wholesale dismissals, many were ultimately rehired. However, strike representatives were not allowed to return to their jobs. Public service wage increases above the 1997 inflation rate pre-empted a repeat of the 1996 strikes, but they helped set the stage for a series of private sector wage negotiation strikes.
The Labour Relations Amendment Act (LRAA) of 1992 specifies that workers may establish independent worker committees, side by side with unions, in each plant. Worker committees must also be registered with the MPSLSW, which is free to refuse registration. The formation of worker committees was an attempt to dilute union authority. However, their ineffectiveness demonstrated the need for the experienced worker representation of the established trade unions.
The ICFTU has criticised Zimbabwean labour legislation for giving "wide scope to the authorities to declare that a given enterprise or industry constitutes an essential service, and then impose a ban (on strikes) on it." The authority to reclassify a previously nonessential service as essential was not used in 1997. Workers in sectors deemed "nonessential" have the right to strike, provided the union advises the Government 2 weeks in advance. The Government has often declared strikes illegal on the basis of failure to give timely notice. If the MPSLSW finds that administrative requirements were not met for a strike, it can issue a disposal order that gives the employer the right to dismiss striking workers. More than 100 collective job actions were reported during 1997.
The ZCTU and its officials are free to associate with international labour organisations and do so actively.
Freedom to Organise and Bargain Collectively
The LRA provides workers with the right to organise. As originally enacted, this act was silent on the right to bargain collectively. However, the 1992 LRAA permits unions to bargain collectively over wages. Worker committees, which are by law not organisationally part of the unions or the ZCTU, are empowered to negotiate with the management of a particular plant on the conditions of labour and codes of conduct in the workplace, except for wages.Collective bargaining wage negotiations take place on an industry wide basis between the relevant union and employer organisations sitting on joint employment boards or councils. These bodies submit their agreements to the Registrar in the MPSLSW for approval. The Government retains the power to veto agreements that it believes would harm the economy. However, it did not directly involve itself in labor negotiations unless requested to do so by one of the two parties. When no trade union represents a specific sector, representatives of the organised workers, such as the professional associations, meet with the employer associations, under the mediation of labour officers from the MPSLSW. Public sector wages are determined by the Salary Service Department of the MPSLSW, subject to the approval of an independent Public Service Commission (PSC). Each year PSC officials meet with PSA representatives to review wages and benefits. These reviews result in a recommendation that is forwarded to the MPSLSW. The Minister is not required by law to accept the recommendation.
Employees designated as being in managerial positions are excluded from union membership and thus from the collective bargaining process. There were some reports that firms designated excessive numbers of employees as being in managerial positions in order to exclude them from the collective bargaining exercises.
The LRA prohibits antiunion discrimination by employers against union members. Complaints of such discrimination are referred to labour relations officers and may subsequently be adjudicated by the Labour Relations Tribunal (LRT). Such complaints are handled under the mechanism for resolving cases involving "unfair labour practices." The determining authority may direct that workers fired due to antiunion discrimination should be reinstated, although this is not utilised in practice.
The LRAA streamlined the procedure for adjudicating disputes by strengthening the LRT. Now, labour relations officers hear a dispute; their decision may be appealed to regional labour relations officers, after which the LRT may hear the case. Ultimately, it may be appealed to the Supreme Court. In 1993 the Government filled long vacant positions on the LRT, but many LRT boards are still not fully staffed.
The Export Processing Zones Act states the LRA shall not apply to workers in export processing zones.
EXAMPLES OF TRADE UNION RIGHTS VIOLATIONS IN SOUTHERN AFRICA
The constitution of Botswana excludes civil servants and teachers from forming or joining trade unions. They are permitted to form associations with restricted bargaining rights.
Agricultural and domestic workers are excluded from the Trade Union Act and cannot belong to trade unions. Discussions on extending the law have so far come to nothing.
Elected trade union officials cannot hold full-time union office and must work full-time in the sector the union represents.
Workers are allowed to go on strike, but the complex and lengthy preconditions which must be fulfilled make legal strikes impossible in practice.
Elected trade union officials cannot work full-time for the union because they are obliged to work full-time in the industry or sector the union represents.
Public servants and teachers cannot form or join trade unions, but only associations with restricted bargaining rights. Agricultural and domestic workers are not covered by the Trade Union Act and cannot belong to trade unions or bargain collectively.
Workers can go on strike, but there has never been a legal strike in Botswana; the complex and lengthy procedures which must be followed make legal strikes impossible.
Trade union affiliation to international trade union bodies must be approved by the Minister of Labour, although if permission is withheld, unions can appeal to the courts. The law also allows the Labour Commissioner to attend union meetings.
Elected trade union officials have to work full-time in the industry or sector the union represents - which means, in effect, that Botswana has no full-time union officials. Public servants and teachers cannot form or join trade unions, although they can belong to associations with restricted bargaining rights. Agricultural and domestic workers are not covered by the Trade Union Act and cannot belong to trade unions or bargain collectively.
Workers can go on strike, but there has never been a legal strike in Botswana because of the complex and lengthy pre-strike procedures unions have to follow. The Minister of Labour has to approve any union affiliation to international confederations, although if permission is withheld, unions can appeal to the courts.
The law allows the Labour Commissioner to attend union meetings.
The government issued a legal order in January excluding public employees from coverage under the 1992 Labour Code. This meant that they could not belong to trade unions. A public service union subsequently filed a case in the High Court against the government. The case was never heard and the order was not enforced.
In August, over 5,000 public servants marched through the capital city, Maseru, to protest at the introduction in parliament of a Public Service Bill which explicitly banned public employees from forming or belonging to trade unions. There had been no consultations with trade unions. After international trade union protests, the bill was quietly withdrawn.
Another bill, introduced in parliament to standardise the terms and conditions of employment of teachers, banned them from going on strike. The government has said that it considers teaching to be an essential service. The bill was passed, and was expected to become law at the beginning of 1996.
Procedures which unions must fulfil before they can strike are lengthy and cumbersome. Employers again collaborated with the police and security forces to repress strikes.
In March, the Lesotho Industrial Employers Association withdrew from a collective bargaining agreement it had entered into with the textile union, LACTWU. Several companies, including the Maseru Clothing Company and the Amalgamated Shoes Group, dissociated themselves from the existing collective agreement for the sector without fulfilling the legal requirements, and announced that they would negotiate directly with workers.
Workers at Maseru Clothing and Mustang Shoes went on strike. They were given an ultimatum to return to work. Before the ultimatum expired, the police opened fire on the workers, injuring 18 of them, one seriously. Eight workers were detained and later released without charge. Hundreds of workers were dismissed and only those who would leave the union were reinstated on contracts.
Although agreement was reached between LACTWU and the companies after mediation by the Commissioner of Labour, the companies did not fulfill their undertakings. They continued to force workers to sign a non-union clause. LACTWU took legal action against the companies.
Police said to be acting on employers' instructions shot dead 15 construction workers and wounded more than 30 others on 14 September at the Butha Buthe site of the Lesotho Highland Water Project.
The dead and wounded were members of the Construction and Allied Workers' Union of Lesotho, CAWULE. They were among 2.300 sacked on September 12 after striking over wages and conditions ñ management said the strike was "unnofficial" ñ and had gone to the site to collect their final pay. When they turned up there was a dispute, and the police used tear gas and opened fire on them.
Many other workers were arrested and beaten up before being released without charge. The police also raided the homes of workers' families while hunting for members of the workers' committee.
Police violence had been used on several previous occasions against workers at the project. The project includes several contractors LTA Ltd., South Africa; Spie Batignolles, France; Campenon Bernard, France; Balfour Beatty Ltd., United Kingdom; and Ed Zublin Ag., Germany.
It took international trade union intervention to get a negotiated settlement to the dispute. The management agreed to reinstate 1,700 workers and provide a redundancy package for the 600 others. They also said they would renew the recognition agreement with CAWULE which they had cancelled in June.
The project management promised to make a contribution of humanitarian assistance to the victims of the shooting and their families ñ but they refused to accept responsibility for the shooting.
Unions in the textile sector continued to complain that employers were constantly undermining union organisation by harassing organisers and intimidating union members. The government continued to ignore their complaints.
Unions have to go through lengthy and cumbersome legal procedures before they can go on strike. There have been no legal strikes in Lesotho since it became independent in 1966.
The government brought in a new law during the year which banned civil servants from forming or joining trade unions.
A bill passed in parliament in 1995 standardising teachers' terms and conditions, and banning them from striking, came into force in 1996. The government said teaching was an essential service.
Lesotho's labour law applies in the country's industrial zones but police stations at the entrance to the zones stop union organisers getting in.
A 1996 law bans civil servants from forming or joining trade unions, which breaches Lesotho's 1993 constitution.
Teachers were banned from striking under a 1995 law which categorised teaching as an essential service .
Lengthy and cumbersome procedures have to be followed before a strike can take place, with the result that there have been no legal strikes since independence in 1966. Workers are often sacked for going on strike even though this is against the law.
Lesotho's labour law applies in the country's industrial zones - but police stations at the entrance to the zones stop union organisers getting in. Unions, particularly in the textile sector, said that employers were constantly undermining union organisation by harassing organisers and intimidating union members. Union activists were frequently sacked and put on blacklists. The Labour Ministry has generally proved either unwilling or unable to enforce the law.
The authorities used violence against striking public servants in April and arrested union leaders on false charges. The CSTU public servants' union had gone on strike to call for a wage rise recommended by an independent commission on salaries and conditions of service, which the government had promised to pay. On 8 April, the second day of the strike, armed police with dogs dispersed a gathering of union members in the capital, Lilongwe. Many strikers
were badly bitten and others were injured after being hit by batons. Some of the strikers fled into their offices, and were followed and locked in by police. The authorities threatened to sack them, claiming that the strike was illegal. On 9 April, police arrested and tortured the chair-man of the CSTU in Zomba, two other union officials and a union member. On 10 April, CSTU General Secretary, Samuel Banda, and union treasurer Hastings Kachhikopa were arrested. Banda was dragged naked from his home. They were interrogated on a matter which had nothing to do with the dispute and released on bail. The next day, Samuel
Banda was seized on his way to a funeral and detained for three hours.
On 14 April, the government instructed the police to arrest more union leaders and said that no more than four civil servants could meet at any one time. There were clashes with the police in Lilongwe, Mzuzu and Zomba. Union leaders in several towns were persistently harassed by police and other security forces. On the following days, the police put up road blocks around government offices. On 16 April, all the members of the CSTU committee in the Rumphi district were arrested and taken to Mzuzu and interrogated. They were released on bail and charged with breaching the peace. Police used tear gas to break up a march of public servants in Zomba protesting at the arrests and harassment.
Dogs were set on public servants in Lilongwe. On 17 April, the union committee in Mzimba was arrested, and some of them were threatened at gun point. They were detained for a day before being released on bail and charged with breaching the peace.
On 22 April there were more arrests, particularly in Chitipa. Six union leaders were arrested in Mzuzu. Members of the union committees in Nhkata Bay and Karonga were arrested. There were violent clashes when police dispersed strikers trying to submit a petition to the president and cabinet in
Lilongwe, Mzuzu and Blantyre. CSTU Vice-president Mike Gondwe escaped when four police tried to arrest him in Mzuzu.
Letters of interdiction were issued against almost 50 CSTU members. The TUM teachers' union gave notice to the government that it would hold a
demonstration on 29 April and join the strike on 13 May.
On 28 April, Mike Gondwe was arrested in Mzuzu while addressing a meeting of public servants. The union feared he would be tortured. He was held in police custody and no-one was allowed to see him. In Karanga, police attacked a peaceful gathering of striking public servants with tear gas and live ammunition.
On the next day, marches by the teachers' union in various cities and a civil servants' meeting were dispersed by dogs and tear gas, injuring many women. The police beat the president of the CSTU with sticks. The regional chairman of the union, T.R. Mwafango, was arrested after being bitten by police
dogs. He was so badly injured that he had to go to hospital before being taken into custody. In Karonga, police fired tear gas into people's homes as they broke up meetings of strikers. In Mzimba and Rumphi, they were searching for union leaders.
The authorities began to force some public servants to retire or transferred them into other ministries. On 30 April, Mike Gondwe was released on bail and charged with inciting a strike in Nhkata Bay and throwing stones at a vehicle. He denied the charges. On 5 May, the police in Mzimba tortured detained public servants Brown Mbale, Nyirenda, and Munthali to try and get information about the alleged murder of a policeman. Munthali's hand was
broken. They were not allowed to have hospital treatment.
On the following day the police continued to harass public servants and to use teargas on any gathering. The regional chairman, T.R. Mwafango, arrested on 29 April, was acquitted by a magistrate's court on all charges.
The government didn't turn up to a meeting with the unions on 9 May saying it would not negotiate until the strike ended. On 19 May, all sides agreed to resume negotiations. The strike was called off and the government withdrew the letters of interdiction. Thirty union leaders still faced court cases.
Observers said that the government had repressed the strike out of fear that the opposition were behind the union action. Many employers continued to resist unionisation in their workplaces. The National Seed, Cotton and Milling Company of Malawi sacked 129 workers including the general secretary of the hotel and catering union, Dorothea Masuku, for union activities in 1996.
Although a new labour law had been adopted in 1996, it did not come into effect during 1997.
Government harassment of the Swaziland Federation of Trade Unions, and in particular, its general secretary, Jan Sithole, worsened during the year. The 1995 Industrial Relations Bill, passed in December, criminalised trade union activities and seriously violated trade union rights. Someone tried to kill Jan Sithole in August.
Provisions of the labour law allow the authorities to interfere into internal trade union affairs. The Labour Commissioner can refuse to register a trade union if he considers that another registered union represents the workers' interests. Trade union federations are forbidden from carrying out political activities and their roles are limited to providing advice and services.
The authorities can refuse to register collective agreements on the grounds that they are out of line with the government's directives on wages and wage levels.
The 1980 Industrial Relations Act bans strikes in the postal, radio and teaching sectors. The Minister of Labour can refer disputes to compulsory arbitration on the grounds that a strike would threaten the national interest.
Harassment and victimisation of Jan Sithole, the general secretary of the SFTU, continued in 1995. At the beginning of the year, he received telephoned death threats warning him to stop his trade union activities, and three men in plainclothes, assumed to be security officials, called at his house. The telephone line to the house was cut for a short time. The SFTU reported the presence of plain clothes policemen with tape recorders in trade union meetings.
On 13-14 March, the SFTU held a general strike which paralysed the capital city Mbabane, and the country's main city Manzini. There were reports that workers were arrested for striking. The strike was called to back the SFTU's request for negotiations with the government over the union's 27 demands, submitted to the authorities in early 1994. The demands called for improvements in workers' rights and conditions, as well as a more democratic and representative society.
The strike was also held to protest against the Draconian 1995 Industrial Relations Bill and amendments to the Employment Act which had been introduced into parliament without discussion in the tripartite Labour Advisory Board. The Federation of Swaziland Employers had also strongly criticised the bill, calling it "oppressive".
The Industrial Relations Bill criminalises industrial relations. An official of a trade union federation who calls strike can be punished by a 5,000 Emalengeni fine or a maximum of five years imprisonment, or both, and a subsequent five-year ban on holding trade union office. Equally severe penalties apply to organisations or office holders calling, organising, or giving financial support to strikes in essential services. The bill gives a broad definition of essential services, and the Minister of Labour has unilateral powers to amend the list.
The bill gives the Commissioner of Labour powers to suspend a union or a federation, without subjecting the decision to the judiciary. It maintains the limitations on the role of trade union federations to offering advice and services. Approval is required for international trade union affiliation. Holding more than one trade union or political office is banned. Severe penalties, including dissolution, can be imposed on a union which, during the preceding twelve-month period, has, in the opinion of a court, devoted more time and funds to campaigning on public policy issues than on occupational issues.
On 24 March, the police served the SFTU with an injunction to stop them holding meetings planned for the following weekend. The two meetings, one of trade union officials, and one of workers, went ahead when the High Court ruled against the injunction.
In early June, the authorities claimed that Jan Sithole had no right to Swazi citizenship, despite the fact that he had lived there all his life and had a Swazi mother. Press reports speculated on his possible deportation to Mozambique, where his father had come from. The government demanded that he should return all official documents including his passport. He was ordered to appear before a Citizenship Board on 22 June to justify his claim to Swazi citizenship.
Jan Sithole had applied for citizenship in 1979, in order to comply with a new legal requirement, and had received no response. Under a 1992 Citizenship law however, Swazi nationality had been conferred on all persons whose father was not a Swazi. The Citizenship Board hearing was postponed to 20 July. It did not take place, presumably owing to international condemnation of the government.
On 9 July, the SFTU announced a national mass stayaway for 17 July after negotiations with the government on its demands had failed. Jan Sithole continued to receive death threats from an anonymous caller and the SFTU reported that there had been rumours that he would mysteriously disappear before 17 July.
On 14 July, the Prime Minister issued Legal Order No. 100 designating the mass stayaway called by the SFTU as a boycott and making anyone furthering a boycott liable to six months imprisonment. The government deployed troops in the main employment centres to intimidate workers. There were also reports of threats, intimidation, and dismissals at workplaces.
The announcement of the stayaway led to a last minute agreement in tripartite negotiations, and the suspension of the stayaway for two weeks. A tripartite committee was established to examine the 1995 Industrial Relations Bill. On 21 July, Order 100 was revoked.
In the late evening of 29 August, four armed and hooded men with automatic rifles stopped Jan Sithole in his car. They took his clothes, personal documents and SFTU documents, and locked him in the car boot. One of the kidnappers wanted to kill him there and then. The car was driven to the outskirts of Manzini where it was abandoned in the middle of the road on a blind corner. Jan Sithole was freed from the car boot early the next day by a passer-by.
The SFTU believed that government agents were behind the kidnapping and the attempt to kill him. The police were known to be in possession of the documents stolen by Jan Sithole's abductors.
On 15 November, six trade unionists and two members of political opposition parties were arrested in Mbabane. They were released the following day after interrogation. It was believed the arrests were linked to a pro-democracy civic meeting held on 11-12 November, where the SFTU agreed to form an alliance with opposition parties, all of which are banned.
During the same month, Jabulani Nxumalo, the SFTU assistant general secretary, was dismissed from his job, under the pretext of a workplace reorganisation.
On 7 December, parliament passed the 1995 Industrial Relations Bill, which was awaiting the Royal Assent of the King at the end of the year.
The SFTU announced that it would embark on mass action in early 1996 to continue to press the government to meet its 27 demands. Speaking on the government-owned radio station, an official said that force would be used against striking workers.
On 16 December, the Deputy Prime Minister alleged that the SFTU was against Swaziland's monarchy and was preparing to overthrow the King. This was strongly refuted by the federation.
The intimidation and violence directed against leaders of the Swaziland Federation of Trade Unions (SFTU) by the Swazi authorities and the security forces worsened in 1996.
On 19 January, the King gave his assent to the 1996 Industrial Relations Act (IRA) passed by parliament in December, 1995.
Under the act, an official of a trade union federation who calls a strike can be punished by a fine of 5,000 Emalengeni or a maximum of five years imprisonment, or both, and a subsequent five-year ban on holding trade union office.
Equally severe penalties apply to organisations or office holders calling, organising, or giving financial support to strikes in essential services. The Act gives a broad definition of essential services, and the Minister of Labour has unilateral powers to amend the definition. The list includes telephone, telegraph and broadcasting services.
The Attorney-General can apply for an order to stop a strike, and the Minister of Labour can apply to ban a strike on the basis of national interest, which is not defined.
The Act allows the Commissioner of Labour to suspend an organisation or federation, and gives him wide powers to interfere into union constitutions.
Trade union officials are banned from holding more than one official position in a union, and from holding office in a political party.
The Act limits the roles of unions and federations to the offering of advice and services, as had the previous law. Severe penalties, including dissolution, can be imposed on a union or federation which has, in the opinion of a court, devoted more time and funds on public policy issues than on occupational issues during the preceding twelve-months. The Act also prohibits federations from calling rallies or mass meetings.
Prior authorisation from the Labour Minister is required before a trade union can affiliate internationally.
The 1973 Decree on Meetings and Demonstrations, restricts the rights of organisations to hold meetings and demonstrations. Under the Public Order Act of 1963, police permission is needed for certain meetings and public gatherings. Police can attend union meetings.
At the end of 1995, the authorities had begun investigating the citizenship status of Richard Nxumalo, the SFTU president. The police and members of the intelligence forces visited his home and on at least two occasions interviewed several people, including his relations, about when his family had settled in the region. They also went to his employer to look at his employment records. The authorities claimed that Richard Nxumalo was not a Swazi, but a South African.
The SFTU announced a mass stay-away for 22 January, 1996, to press the government to meet its "27 demands" - a list of issues the SFTU had first submitted to the government for negotiation in October, 1993. They included various labour and economic claims and demands for a more democratic society.
The stay-away also protested against the IRA and called for the legalisation of political parties.
On 18 January, the prime minister issued Legal Notice No. 11 of 1996 which designated the stay-away as a boycott. This brought it within the scope of the 1963 Public Order Act. Bail is not granted for charges under this act.
On the first day of the stay-away, 22 January, Jan Sithole, SFTU general secretary, Richard Nxumalo, and Jabulani Nxumalo, the SFTU assistant general secretary, were arrested while holding a meeting with the Swaziland Federation of Employers. They were taken to Mbabane police station and told that they would be charged under the IRA.
Their lawyer was allowed to visit them, but the police lied to him about where they would be detained overnight, and where, and at what time the case would be heard the next day.
The three union leaders were taken to Mliba where they were held with three other people in a police cell one and a half metres square and without water or lights. The toilet was in the middle of the cell and contained no water.
Next day, they were taken to a small police station in Siphofaneni about 75 kilometres from the capital city, Mbabane. The police brought a magistrate and the Director of Public Prosecutions to prosecute the case. By chance, the President of the Swaziland Law Society saw the convey of cars. He arrived at Siphofaneni police station and found that the union leaders had already been charged without their lawyer being present.
They were charged under the 1963 Public Order Act and Legal Notice No. 11 of 1996. The police had earlier told them that they would be charged under the IRA.
The president of the Law Society objected to the fact that they were being charged without a lawyer, and the case was adjourned. He went to fetch the SFTU lawyer who had been sent to the wrong place.
When the lawyers arrived in Siphofaneni the case had been heard. Bail had been refused. The magistrate remanded the three union leaders in custody pending another court hearing in seven days. The Director of Public Prosecutions recommended that they should be taken to a maximum security prison. The police refused to tell the lawyer where they would be imprisoned. Eventually it was discovered that they were taken to Big Bend prison for a short time and then transferred to Matsapa maximum security prison.
The following day, 24 January, the SFTU lawyer filed an urgent application for bail and challenged the charges in Mbabane High Court. On 25 January when the government's lawyers were scheduled to respond, the case was withdrawn.
In his summing-up, the judge made sharp criticisms about the way the state had handled the case. He said that false and misleading information had been given to lawyers about where the SFTU leaders were being held; the charges under which they were held; and the whereabouts of their court hearing. The judge was subsequently demoted from Acting Chief Justice to the status of an ordinary judge.
After their release on 25 January, the three union leaders attended a union meeting at Simunye sugar estate. All the participants were checked to ensure that they were accredited union representatives. One car arrived with two registration numbers, one superimposed on the other. After checking it was established that the car had a government registration plate covered with a private registration number.
The two occupants of the car ran away. They were chased and caught, and it was found they were members of the police force. The car contained revolvers and two pistols, ammunition, recording equipment and two-way radios. There were several other number plates in the boot of the car. The SFTU reported this to the police who drove the car away. The government had deployed the army and the police in the area.
The SFTU suspended the stay-away on 29 January. The police had fired tear gas and beaten workers during the stay-away and a sixteen year-old girl had been killed by a stray bullet fired by the police.
The government subsequently told the SFTU that it had appointed five cabinet ministers to negotiate with them. The SFTU tried for two days to meet the government's negotiators but failed. On the following day, the government sent a message that it would meet the SFTU - knowing that a meeting would not be possible because the SFTU leaders were attending the funeral of the girl whom the police had killed.
The SFTU planned a mass meeting on 4 February and the police threatened arrests and confrontation if it went ahead. The authorities banned the meeting.
On 7 February, SFTU Assistant General Secretary Jabulani Nxumalo was arrested and charged with forging a high school certificate in 1984. He was released on bail. SFTU leaders continued to receive death threats.
The government filed new charges on 28 February against the three SFTU leaders, two other senior union officials and the SFTU itself under the IRA in connection with the January stay-away .
The accused were Jan Sithole, SFTU general secretary and general secretary of the Swaziland Agricultural and Plantation Workers' Union; Richard Nxumalo, SFTU president; Jabulani Nxumalo Themba Msibi, SFTU trustee and president of the Swaziland Union of Non-Academic Staff of Higher Learning; Barbara Dlamini, SFTU executive member and general secretary of the Catering and Allied Workers Union
On 15 March, an agreement was made in the tripartite Labour Advisory Board to amend the IRA. However, the amendments were not submitted to parliament.
The five union leaders were summoned to a pre-trial hearing on 29 March. Negotiations with the government were suspended because all the accused were in the SFTU negotiating team. The charges against the union leaders were kept pending throughout the year.
On 4 June, the government wrote to the SFTU demanding damages for losses incurred during the illegal stay-away of 22-29 January, 1996. The letter gave the SFTU 20 days in which to pay the amount of E. 3,606,108.45.
In June, the government excluded the SFTU from the Swazi delegation to the International Labour Conference in Geneva.
Swaziland's Acting Prime Minister told an ICFTU mission on 23 July that the amendments to the IRA which had been cleared by the Labour Advisory Board were already in parliament. He said he would try and add a certificate of urgency to them so that they passed through speedily. The amendments to the IRA would invalidate the claim for damages against the SFTU.
At the end of July, the King appointed a 29-member constitutional review commission, including one trade unionist in his personal capacity. The SFTU said that the composition of the commission was not democratic because there had been no consultation about the appointments.
In August, Jabulani Nxumalo was acquitted of forging a high school certificate in 1984 because there was no evidence against him.
At the end of the year, there had been no amendments to the IRA and the government continued to refuse to negotiate seriously with the SFTU.
Harassment and victimisation of the Swaziland Federation of Trade Unions (SFTU) continued, and the restrictive 1996 Industrial Relations Act (IRA) remained in force .
Under the act, an official of a trade union federation who calls a strike can face a fine of 5,000 Emalengeni and/or five years in prison, and a subsequent five-year ban on holding union office. Equally severe penalties apply to organisations or officials calling, organising, or giving financial support to strikes in essential services, which includes broadcasting.
The Minister of Labour can amend the definition of essential services. The Attorney-General can apply for a declamatory order to suspend a strike and the Minister of Labour can apply for an order to ban a strike on the basis of the national interest, which is not defined.
The Act allows the Commissioner of Labour to suspend an organisation or federation. Trade union officials are banned from holding more than one official position in a union, and from holding office in a political party.
The Act limits unions and federations to an advisory role. Courts can penalise, and even dissolve, a union or federation if they find it has devoted more time and funds to public policy issues than occupational issues during the past year. Unions cannot picket outside establishments not directly involved in a dispute. The Commissioner of Labour must conduct a strike ballot and a majority of all employees must vote in favour.
The 1996 act perpetuated several restrictions on union rights contained in the 1980 Industrial Relations Act. The Labour Commissioner can refuse to register a trade union if he thinks an existing union already represents the interests of the workers in the sector. Workers can only organise unions within the industry in which they are employed. Prison staff cannot form or join trade unions.
The 1973 Decree on Meetings and Demonstrations, restricts the rights of organisations to hold meetings and demonstrations. Under the 1963 Public Order Act, police permission is needed for certain meetings and public gatherings. Police can attend union meetings.
The SFTU called a mass stay-away for 3-4 February to support demands first raised in 1993, relating to labour and economic issues, for a more democratic society, and the repeal of security laws. Swaziland's constitution was suspended by a 1973 decree which also banned political parties. Although the King had set-up a constitutional review commission in 1996, it was composed of hand-picked representatives.
From the start, the government determined to crush the stay-away, rather than negotiate on the union demands. Ministers refused to take part in a meeting between unions and employers on 29 and 30 January aimed at finding a solution. On 31 January, the government published legal notices No. 8 and 9 declaring the stay-away a boycott under the 1963 Public Order Act, and listing offences for which no bail would be granted. Police arrested SFTU general secretary Jan Sithole the same day. Richard Nxumalo, SFTU president, Themba Msibi, vice-president, and Jabulani Nxumalo, assistant general-secretary were arrested early the following morning after a union meeting. It was believed the King himself had ordered their arrests.
On 1 February, the authorities obtained an Industrial Court order banning the SFTU, its affiliated unions, and members, and all workers, from organising or participating in the stay-away, and declaring it illegal and against the national interest .
On the same day, seven police officers and 15 heavily-armed soldiers, acting without a warrant, raided and searched SFTU headquarters . The Swaziland Broadcasting Service banned all announcements or news relating to the stay-away.
A meeting on 2 February between the SFTU, employers and two government ministers failed to make any progress. On 3 February, the stay-away went ahead. The police surrounded and blocked off SFTU headquarters. Security forces were stationed in major towns, and guarded key installations. Police fired in the air to disperse demonstrators, including in Matsapa. In Mbabane, they intimidated and beat workers who had joined the stay-away. Trade union official Simon Tsabedz was roughed up and thrown into a dam. Police acting without a warrant raided and searched the home of Afrika Magongo, an SFTU trustee.
On 3 February the four arrested officials were taken before a magistrate's court in Mankayane and charged under Section 12 of the 1963 Public Order Act for intimidation in connection with their involvement in the stay-away. They were refused bail and sent to Matsapa Maximum security prison. Their trial was set for 10 February.
In the evening of 3 February, the SFTU held a general council meeting. Some 150 armed police prevented the 23 members from leaving and ordered them to the police station. The police opened fire but no-one was injured. SFTU treasurer Mxolisi Mbata, a wheelchair user, was thrown from his chair and forced to crawl to the police station. The council members were locked in a room full of tear gas until early the following morning. They were beaten up and then individually interrogated. The acting secretary general, Barbara Dlamini, was asked why she had called a meeting without police permission. The stay-away continued, and on 11 February, workers were shot at and one was seriously injured at Big Bend. Jan Sithole's mother and other close family were harassed while he was in jail.
The trial of the four SFTU leaders began in Manzini on 19 February after preliminary hearings in the remote rural town of Mankanyane. The government manipulated the legal proceedings, and as in the past there was confusion about where the trial would take place. The four men faced charges of intimidating bus operators into not running services on the two days of the stay-away, an offense which carried a life prison sentence. Bus operators wrote a letter to the SFTU dissociating themselves from the charges.
On 26 February the judge acquitted the accused through lack of evidence, saying that there had been no case in the first place. He said that the police called for the prosecution were dishonest and their evidence lacked credibility and was full of inconsistencies. The stay-away was called off, but the government was still gunning for the SFTU.
In May, it suspended all SFTU-affiliated unions for failing to submit their financial returns on time, in line with the IRA, even though the act did not define the financial year. The government subsequently backed down.
The SFTU called a mass rally on 7 September in support of its demands. At a meeting on 5 October the SFTU gave the government one week to meet its demands, or face an immediate programme of mass action.
A stay-away was held on 13-15 October. The police and the army were deployed in force. Teachers began a strike on 13 October over a pay rise. On 27 October, t h e re was a mass march of SFTU members, professional associations, parents, and students. On the following day the marchers went to the airport where the King was arriving home from the Commonwealth Summit in Scotland. The security forces shot at the crowd with live ammunition and tear gas. Many had to go to hospital.
At the end of the month, the SNAT teachers' association was banned from using the state media. The teachers' strike continued until the end of the year. Troops were deployed to supervise exams. The senate called for the association to be banned at the beginning of November and for all teachers to be sacked until 1998, although this was rejected by the government. One senator called for Jan Sithole to be deported, and for the nationality of SNAT president Meshack Masuku to be investigated.
At the beginning of December, the SFTU said that harassment and intimidation of trade unionists was increasing despite the fact that the SFTU, employers and the government were drafting a new Industrial Relations Act. Seventeen union leaders and officials were sacked after the October stay-away, by the Simunye sugar company, partly owned by the government. Armed troops and artillery, including armoured vehicles, were stationed in and around the factory. The SFTU temporarily withdrew from the drafting committee of the IRA in protest but went back at the end of the year.
Zimbabwe's constitution bans public servants, teachers and nurses from belonging to trade unions. They can belong to associations which cannot join the national trade union centre, the Zimbabwe Congress of Trade Unions.
A Public Service Bill which would remove the constitutional ban on public service unionisation was discussed in parliament during the year. Tripartite discussions took place about a new consolidated labour law which would extend its coverage to the public service.
The ZCTU made representations to the government in 1995 about the exemption of EPZs from labour law. An Export Processing Zones Act which had been passed at the end of 1994 enabling zones to be set up, said that the Labour Relations Act would not apply. It gave the EPZ Authority the right to establish special labour regulations for the EPZs, in collaboration with the Labour Ministry.
During the year, the state president said that the EPZ Act should be amended to make the Labour Relations Act applicable.
The 1985 Labour Relations Act did not mention the right to bargain collectively. It provided for workers' committees to be set up at each workplace, and to negotiate with management on a wide range of plant-level matters. The committees exist alongside trade unions, and are legally independent of them. By carrying out trade union functions, the system undermines unions and free collective bargaining.
The role and status of trade unions was further diminished by the greater emphasis on workers' committees as the basis for worker representation in the 1992 Labour Relations Amendment Act. The system focused on Works' Councils, composed of management and workers' committees, and gave them powers to negotiate collective agreements or employment codes.
Companies or industries can opt out of the state regulation system by adopting a collective agreement or an employment code. In theory these can be negotiated at industry level, but the emphasis on Works' Councils means that agreements are made at plant level. The agreements can override industry-wide agreements reached by employment councils.
The employment codes are vetted by the Minister of Labour after which all issues, except wages, can be negotiated at plant level.
The 1992 Act also provided a wide definition of managerial employees, which included workers such as foremen and supervisors, and excluded them from union membership.
The right to strike is restricted in legislation. Long and cumbersome procedures must be followed before workers can take collective action. The law gives a wide definition of essential services in which strikes are banned. The Minister of Labour can designate any service or occupation as essential at any time.
There were legal moves to bring all workers under a new consolidated labour law. Zimbabwe's constitution prevents public servants, teachers and nurses from joining unions and determines their conditions of employment.
A draft of the new labour act would allow these workers to organise in unions which could join the ZCTU union centre and bargain collectively. They would have limited strike rights. In the past, they could only form associations which could not bargain collectively or strike.
An Export Processing Zones Act which had been passed at the end of 1994 enabling zones to be set up, exempted the zones from labour law. It gave the EPZ Authority the right to establish special labour regulations in the EPZs, in collaboration with the Labour Ministry.
After ZCTU protests, the president said in 1995 that the EPZ Act should be amended to make the labour law applicable in the zones. This had not been done by the end of 1996, although the government said that regulations were being put in place to protect workers and their rights.
The 1985 Labour Relations Act provided for workers' committees to be set up at each workplace, and to negotiate with management on a wide range of plant-level matters, excluding wages. The committees exist alongside trade unions, and are legally independent of them.
The 1992 Labour Relations Amendment Act provided for collective bargaining but the role and status of trade unions were further diminished by the greater emphasis on workers' committees. Works' Councils, composed of management and workers' committees, were given powers to negotiate collective agreements or employment codes. These can override industry-wide agreements reached by employment councils, again marginalising unions. The government can veto agreements which it believes are harmful to the economy.
The ZCTU said that the principle of getting rid of the workers' committees and replacing them with union committees had been agreed in tripartite discussions and was expected to be incorporated into the new law.
The 1992 Act also provided a broad definition of managerial employees, which included workers such as foremen and supervisors, and excluded them from union membership.
The Minister of Labour has wide powers of control over union finances to the extent of setting the levels of union dues. Union dues cannot be used for political purposes.
Long and cumbersome procedures must be followed before workers can go on strike. The law gives a wide definition of essential services in which strikes are banned. The Minister of Labour can at any time designate any service or occupation as essential.
On 20 August, civil servants went on strike over the government's failure to honour an agreement over pay increases. Nurses had gone on strike the previous day.
The Minister of Labour said that the strike was illegal, and on 22 August, the general secretary, John Makoni, and deputy general secretary, Charles Chiiru, of the Public Service Association (PSA) were arrested. They were released the next day.
The strike was called off on 22 August, but thousands of workers stayed out. On 23 August, the government said that strikers were sacked. This was estimated to affect 70-80% of 180,000 civil servants. Armed riot police were deployed in the capital, Harare, on 27 August to keep watch over sacked workers who gathered in the central park.
The PSA was prevented from giving its viewpoint in the state-owned press. There were threats of arrests, intimidation and victimisation of strikers.
On 3 September, the government agreed to reinstate sacked workers who went back to work. However, managers were told to identify everyone who had gone on strike. Over 30,000 workers were identified and not paid for the two and half weeks of the strike. The government began to abolish jobs.
Nurses and junior doctors resumed the strike on 21 October because they had not got the increase promised by the government. On 28 October, doctors and senior nurses went back to work.
On 4 November, Dr. Farai Jiah was arrested and charged with inciting the strike. Dr. Austin Bene was arrested on 5 November. Both were sacked. Doctors went on strike again.
On 8 November, Felix Mafa, the ZITU president was arrested and sacked, though the charges were later dropped. Many nurses were fired and given one month to appeal.
The government started to advertise health service vacancies in South Africa and the UK.
On 11 November, the ZCTU and other sections of society held a demonstration in Harare in support of the strikers. The authorities refused to provide a police escort. Morgan Tsvangirai, the ZCTU general secretary, and Isaac Matongo, the ZCTU vice-president, were arrested for two hours and the crowd was tear-gassed before the march started. Riot police used tear gas and batons to disperse demonstrators. The government invoked the colonial Law and Order (Maintenance Act) against the strikers.
On 12 November, the ZCTU called a two-day national strike calling for the reinstatement of the sacked workers.
On 18 November, the Supreme Court referred the cases of the five arrested doctors and nurses for inciting workers to strike. The Harare Magistrates Court noted that the law might be unconstitutional thus violating the right of the accused.
On 26 November, after an appeal to President Mugabe, half the nurses and a third of the junior doctors had been reinstated. Union leaders were excluded. Nurses refused to go back until their leaders were reinstated. They said they would continue to press for a legal mechanism for collective bargaining and dispute resolution.
By 18 December, the two doctors were still not reinstated. The authorities also refused to reinstate five nurses, and three hundred nurses walked out again. The government said they would not be reinstated and tried to stop them getting jobs in local health institutions. Nurses who went back to work reported victimisation.
There was an attempt on the life of Morgan Tsvangirai, the secretary-general of the ZCTU union centre two days after the country's biggest ever protest strike on 9 December. Seven armed men attacked the secretary general in his office. They used chairs and coffee tables to beat him and tried to force him to jump out of the eighth-floor window. He was taken to hospital unconscious, although he later recovered.
The attack was widely believed to be politically motivated. By the end of the year, the government had not opened an inquiry into what had happened. The attack followed a one-day national strike organised by the ZCTU to protest against a five per cent levy on workers to finance compensation payments for veterans of the independence struggle, the imposition of a sales tax and an increase in fuel and electricity costs. The state fund for compensation payments to war veterans was reported to have been siphoned off by corrupt officials.
Before the strike took place, the police commissioner threatened to crush the demonstration, and the Minister of Home Affairs said in parliament that demonstrators were in danger of being shot.
Politicians belonging to the ruling party made statements inciting the population against the ZCTU leadership and made unfounded claims of collusion between the ZCTU and Zimbabwe's white landowners in the debate about land redistribution.
On the day of the strike, the police used tear gas, dogs and sticks on workers gathering in the capital, Harare. This was in defiance of a high court injunction taken out against the Chief of Police prohibiting the police from interfering with the demonstration as long as it was peaceful. The police also tried to prevent buses and other transport from taking workers to join the demonstration.
Little progress was made in bringing all workers under a new consolidated labour law. Zimbabwe's constitution prevents public servants, teachers and nurses from joining trade unions, and determines their conditions of employment. They are allowed to join associations which cannot bargain collectively or strike.
The new law was expected to let these workers belong to unions which could join the ZCTU union centre and bargain collectively, and to give them limited strike rights. In November, the ZCTU said that it had not been consulted on the government's draft bill.
The 1985 Labour Relations Act provided for workers' committees to be set up at each workplace, and to negotiate with management on a wide range of plant-level matters, excluding wages. The committees exist alongside trade unions, and are legally independent of them.
The 1992 Labour Relations Amendment Act provided for collective bargaining but the role and status of trade unions were further diminished by the greater emphasis on workers' committees.
Works Councils, composed of management and workers' committees, were given powers to negotiate collective agreements or employment codes. These can override industry-wide agreements reached by employment councils, made up of unions and employers. The government can veto agreements which it believes are harmful to the economy.
The ZCTU said in 1996 that the principle of getting rid of the workers' committees and replacing them with union committees had been agreed in tripartite discussions and was expected to be incorporated into the new consolidated labour law.
The 1992 Act also provided a broad definition of managerial employees, which included workers such as foremen and supervisors, and excluded them from union membership.
Union dues cannot be used for political purposes. The Minister of Labour has wide powers of control over union finances and can even set the level of union dues.
Export processing zones were exempted from labour law regulations under a 1994 law. However, the law did provide for the EPZ Authority to establish special labour regulations in the EPZs, in collaboration with the Ministry of Labour. After ZCTU protests, the government said that regulations would be put in place to protect workers. This had not been done by the end of the year.
The ZCTU reported that ambiguities in the labour law were leading to increasing problems over the High Court's involvement in labour disputes, which under-mined the labour tribunal system. Long and extremely cumbersome procedures must be followed before workers can go on strike. The law gives a wide definition of essential services in which strikes are banned. The Minister of Labour can at any time designate any service or occupation as essential.
The majority of the many strikes which took place in 1997 were declared illegal.
Loopholes in the law make it easy to fire workers without giving reasons. In April, the ZIBAWU union in the banks sector went on strike after negotiations with the Standard Chartered Bank broke down. When agreement was reached for the case to go to arbitration, the union called off the strike. The bank immediately sacked the 400 strikers and told them they had to reapply for their jobs under inferior employment conditions. The union took the case to court .
In July, security guards went on strike over a pay increase. On the following day a security company manager shot at 18 security guards in Harare as they walked to the company's premises to ask colleagues to join the strike. One of the guards was seriously injured.
On 22 July, the government used the colonial Law and Order (Maintenance) Act to ban strikes and demonstrations for a two-week period.
In August, over 13,000 clothing workers were sacked after going on strike when wage negotiations broke down. The sackings took place after the government had intervened to give employers the go-ahead to sack as many workers as they wanted Eleven thousand of the workers were taken on again almost immediately but had to re-apply for their jobs and were employed on short-term contracts of a maximum of three months. Many of them had to sign undertakings not to go on strike again. Others were harassed because of their union membership.
The president of the national union in the clothing industry was among those not taken back.
DATA SOURCE: ICFTU "Survey on
Violations of Trade Union Rights"
(1996 -1998 issues)
International Confederation of Free Trade
Unions (ICFTU)
Boulevard Emile Jacqmain 155, B - 1210 Brussels, Belgium.
For more information please contact: ICFTU Department of Trade Union Rights
Tel. 32.2.224.02.03 Fax: 32.2.224.02.97 E-mail: turights@icftu.org