Speech of Jan J. Sithole - The Swaziland case

The Swaziland case as presented by the Secretary General of the Swaziland Federation of Trade Unions, Jan J. Sithole, at the Application of Standards Committee on the 10th of June, 2005

Mr. President, every Government or member state of the ILO who freely ratifies a convention, takes it upon herself to ensure that the ratified convention is enacted and applied in law and in practice, the same government undertakes the responsibility to supervise, monitor and ensure enforcement and implementation thereof, this is an Obligation and duty as such not negotiable.
Mr. President Paragraph 10 of the digest of decisions reads thus "When a state decides to become a member of the organization, it accepts the fundamental principles embodied in the constitution and the declaration of Philadelphia, including the principles of freedom of association.
The ILO Conference in its seating in 1970 took a resolution that says "the rights conferred upon workers and employers organizations must be based on respect for those civil liberties, which have been enunciated, in particular in the universal declaration of Human rights and the International Covenant on Civil and political rights, and that the absence of these civil liberties removes all meaning from the concept of trade union rights".
Yet Paragraph 34 of the digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO on the same principles mentioned above reads thus "the committee considered that a System of democracy is fundamental for the free exercise of trade union rights.
Mr. President all the above ideals and principles are also enshrined both in the Universal Declaration of Human rights of the United Nations and the African Charter of Human and peoples Rights of the African Union to which Swaziland is also signatory.
Mr. President it is against the above noble ideals and principles, upon which this organization was founded, that I now narrate the prevailing situation in Swaziland.

The prevailing Situation in Swaziland:
Swaziland has been ruled under a state of emergency decree for over 33 years now
Swaziland is the only country in the SADC region that rules by decree.
Swaziland is the only country with the longest but continuing state of emergency
without any emergency taking place.
Swaziland is the only country that has no political parties.
Swaziland is the only country in the SADC where there is total disregard for the rule of law.
Swaziland is the only country where all the powers of governance are vested in the
Head of State.
Swaziland is the only country in SADC, where there is no separation of powers
Swaziland is the only country where the citizens in their collective groups have no
right to self determination.

Mr. President the following is the background history of events as they unfolded:
From the year 1995 to 2000, government would promise positive delivery before this committee, whist on the ground, law and practice was diametrically opposite, the above assertion, is attested by reports of direct contact missions and commission of inquiries that were conducted by the ILO, after reports of untold repression and gross violations of both conventions 87 and 98, which were marred by arrests of labour leaders, violent bashing of demonstrations and union meetings with teargas, batons, rubber bullets and sometimes live rounds where a 16 year old girl was killed.
It was not until her economic interest were threatened by the possible withdrawal from the US GSP, in the year 2000, a few hours before the withdrawal timeline, that the government acceded to the new Labour law that was approved by the ILO, but there was no significant improvement in practice, implementation and enforcement.
In 2003 In march 4th and 5th and August, 12th, 13th and 14lh, saw the ugly head of joint armed forces (Army, Police and the Prison staff) brutality on lawful protest activities during the Heads of States Smart Partnership International dialogue, that saw people teargased, beaten with batons, flushed with water cannons, some arrested and some leaders and activists detained, at some isolated weigh bridge. Following this, scenario, government decided that the whole Swazi delegation should not come to the ILO in 2003 to avoid this committee.

It is unfortunate Mr. President that violence and brutality continues unabated as shown in the Amnesty International reports of 2004 and 2005 where people die in prison cells.
The above background Information Mr. President is just to show that we are dealing with a government that is capable of making promises that they do not keep.
Swaziland remains a country that falls within the category of best ratifies of human rights related conventions and international treaties, yet the worst violator of the same treaties they ratify.
Mr. President Swaziland is appearing for the eighth time before this committee since 1996 for flagrant disregard and violation of the freedom of association conventions, which she ratified 27 years ago (1978).
All the previous years, Swaziland has been advised by this committee and the committee of experts to do the following:
To ensure that the labour laws of the country conform with the letter and spirit of both conventions 87 and 98, by allowing the police and the prison staff the right to form and join organizations of their choice without prior authorization, to date those category of workers do not enjoy that right.

To shorten the period upon which a lawful strike is acquired, currently, it takes over 74 working days for a dispute to mature to a strike over and above the internal dispute mechanism we should remember that justice delayed is justice denied. Mr. President this section has not been amended.
To address section 40 (13) of the Industrial Relations Act, which makes the unions liable for civil suit for any loss suffered by any body anywhere in the country if the loss happened during a day when workers were on a lawful protest, and the unions have been threatened several times by several business people in an event they made losses during the lawful protest activities.
To refrain from the use of 1963 public order and to repeal decree no.12 of the 1973 Kings proclamation, unfortunately demonstrations and protest marches have continued to be dispersed by teargas, rubber bullets, and water cannons and sometimes with live rounds, using the public order of 1963 and the 1973 state of emergency decree.
Violations that ensued during the August 2003 demonstrations during the Heads of States Commonwealth Smart Partnership International Dialogue:
Demonstrations at Mbabane, Tshaneni and Tabankulu were marred with violent dispersal using tear gas, Water cannons, rubber bullets and sometimes live rounds. People were hurt, and some hospitalized including innocent civilians, the elderly and children.
In Manzini leaders and activists were detained for several hours in an Isolated Matsapha Weigh Bridge where several activists were beaten with batons by the riot police.
The Rule of law was flagrantly flouted in the face of a Court Order, the police denied demonstrators both the freedom of movement and access to the Assembly area where the Heads of States were convened Government was called upon to bring the security bill to the committee of experts before it is passed into law, so as to ensure that it does not contravene or violate the ratified conventions, government did not pass the bill, but what she did was to insert the spirit and the letter of the security bill into the constitution Bill which will be assented to after adoption by the joint houses of Parliament who are seating as we speak.
The Constitution Bill and obvious violations with the convention, if adopted as is:
The process was exclusionary in two fronts:
The 1973 State of emergency decree which is the current supreme law of the country, banned political parties and the bill of rights (from the independence constitution of 1968), as such citizens who associate with political parties did not have their input in the constitution making process.
Section 4 of decree no.2 of 1996 banned submissions to the constitution making process from all civic, society groups, including workers, employers, the church, teachers, This happened in the face of Swaziland having ratified convention 144 on tripartite consultations.
This process was left to individual submissions who were not allowed to represent any collective views, and the statistics from the Minister for Justice and constitutional Affairs, is that they collected views from only 1,501 individuals out of a population of 1.2 Million inhabitants the process was not preceded by free and independent civic education,
The above denials and banning of civil society participation is happening in the face of paragraph 15 of the digest of decisions, which reads thus, "it should be the policy of every government to ensure observance of human rights".

Denied Social Dialogue Initiatives:
Government has no culture of social dialogue, but one way communication is construed as dialogue, Several civil society groups through marches and demonstrations have over the years submitted petitions to the Government, initiating dialogue on a variety of national issues, and government never responds to civil society initiated dialogue initiatives, this includes the most recent petition which was served by the Swaziland Council of Churches Bishops on the 12th of May, 2005 and a petition that was sent yesterday 9th of June, 2005 to the Joint Parliament Seating.

The content of the constitution:
A constitution is a supreme law which if any law under it is not inconformity, it remains null and void.
In this regard, all the freedoms acquired through the Industrial Relations Act reforms would be null and void if this constitution were to be adopted as is
The contents of the constitution bill have claw back clauses, on all the bill of rights enshrined there in.
The right to life not protected or guaranteed, against paragraph 45 of the digest of decisions which reads thus "The right to life is a fundamental pre-requisite for the exercise of the rights contained in convention no. 87
The rights to freedom of expression and association also not guaranteed.
Freedom of expression can be denied by the state organs in the interest of defence, public safety, public order, public health or public morality, all of these attributes for which the rights can be denied, are not defined.
Freedom of association is selectively limited to apolitical organizations
The System of governance, reverts to individuals and not plural.
Political have no role to play in the governance System of the country.
There is no devolution of powers and/or Separation of powers; all powers are vested in the King.
The proposed constitution about to be assented to, is a combination of the draconian state of emergency 1973 decree, section 4 of decree no.2 of 1996, the 1963 public order Act and the draconian security bill, and all the above are diametrically opposite to dictates of fundamental human rights, respect for human dignity, respect and advocacy for social justice, popular participation and democratic principles.
The above position Mr. Chairperson is not only in conflict with the principles of the freedom of association, as defined by the ILO, but it contradicts all international covenants to whom Swaziland government is signatory including African Charter of the African Union, the Harare declaration of the Commonwealth and the SADC Charter.
The above is taking place in the face of paragraph 8 of the digest of decisions which reads thus "Where National laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to examine the laws, provide guidelines and offer the ILOs technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the constitution of the ILO and the applicable conventions"
Mr. President it is based on the above Situation that prevails in Swaziland, that through the workers group, we brought to this august assembly all the above mentioned issues, because we believe that this esteemed committee has a mandate, to promote, advance and defend social justice, where it is arbitrarily denied, in the interest of innocent citizens of the globe wherever they are Swaziland included.

Prayer of the workers:
That government allow the police and the Prison staff the rights to freedom of association and the right to bargain collectively
That government shortens the dispute process to allow reasonable time that does not cause impediment to the exercise of this right.
That government must remove the Liability clause section 40 (13) from the industrial relations Act, 2000.
That government suspend all the Statutes that impede free participation of workers Employers and the civic organizations in the constitution making process by repealing the following:
Decrees no' 11, 12 and 13 of the King's Proclamation of 1973 decree.
The 1963 public order Act for impeding of assembly and expression
Section 4 of Decree no.2 of 1996
That government be asked not to finalise the constitution making process without allowing social dialogue and participation of the civil society which the very constitution seek to govern.
That after finalization of the process, the document be brought to the committee of experts to assist in ensuring absolute conformity with the letter and spirit of the conventions Government to give progress report to the governing body in November, this year (2005)
It would be a travesty of international justice and abdication of moral responsibility and duty Mr. President if this August house would fail to rescue the oppressed, repressed, exploited, depressed, stressed-out innocent citizens and workers of Swaziland from the ravages of the undemocratic Situation in Swaziland.
Workers of Swaziland are looking up to this committee Mr. President to deliver to it, long deserved human rights, social justice and human dignity which cannot be attained or enjoyed under a state of emergency decree and a constitution bill that is marred with claw back clauses in the bill of rights,
The time has come and the hour is now.