FREEDOM OF ASSOCIATION; ILO PRINCIPLES AND STANDARDS- SWAZILAND SITUATION

1. FREEDOM OF ASSOCIATION; ILO PRINCIPLES AND STANDARDS- SWAZILAND SITUATION

2. Background of Swaziland Labour Laws against ILO Conventions 87 and 98 • Swaziland ratified the two conventions in 1978 and in terms of the country’s legal framework, the conventions had to be domesticated in order to be operative. • Indeed the domestication occurred in 1980 by way of the Employment Act of 1980 and the Industrial Relations Act of 1980. • The two legislations have been amended since then with the Industrial Relations Act being overhauled in 2000.

3. Background of Swaziland Labour Laws against ILO Conventions 87 and 98 • In 2005, we had the country’s Constitution adopted as the supreme law of the land by virtue of it having the supremacy clause. • Under the Bill of Rights, there are rights relating to workers dealing specifically with the Freedom of Association.

4. History of the Country’s Labour Centers • In 2001, the employer’s federation, Federation of Swazi Business Community (FSBC) was formed and registered in terms of Section 27 of the Industrial Relations Act of 2000. • In October 2010, the Federation of Trade Unions (SFTU) and the Federation of Labour (SFL) agreed to merge and the Swaziland National Association of Teachers (SNAT) (which was the only trade union that was not affiliated) agreed to join and form TUCOSWA and it was to be the only workers federation in the country.

5. History of the Country’s Labour Centers • In 1983, the Swaziland Federation of Trade Unions (SFTU) was formed and operated in terms of the 1980 Industrial Relations act, albeit without any provision specifically allowing for the registration of federations. • In 1993, the Swaziland Federation of Labour (SFL) was subsequently formed and registered with the Commissioner of Labour in terms of the Industrial Relations Act of 1980.

6. History of the Country’s Labour Centers • In 2001, the employer’s federation, Federation of Swazi Business Community (FSBC) was formed and registered in terms of Section 27 of the Industrial Relations Act of 2000. • In October 2010 the Federation of Trade Unions (SFTU) and the Federation of Labour (SFL) agreed to merge and the Swaziland National Association of Teachers (SNAT) (which was the only trade union that was not affiliated) agreed to join and form TUCOSWA and it was to be the only workers federation in the country.

7. History of the Country’s Labour Centers • One of the reasons for SNAT not affiliating to any of the two federations was that it would not assist a merger but instead would reinforce the division of workers. • TUCOSWA was subsequently launched in 2011 May Day celebrations and thereafter the registration modalities were kick-started. • The three parties then started with coming up with a Constitution that was then lodged with the Commissioner of Labour for purposes of the registration of the Federation.

8. The Registration and Deregistration of TUCOSWA by the Swaziland Government • The process started in earnest in October 2011 when TUCOSWA submitted her application together with the Constitution to the Commissioner of Labour. • It came out very strongly that the Commissioner was averse to the mentioning of the word Political in any context in the Constitution. • The three groupings, SFL, SFTU and SNAT demanded a meeting with the Commissioner in December 2011 to complain about the delayed registration of the Federation. The Minister of Labour was also threatened with a protest action on the prolonged delay.

9. The Registration and Deregistration of TUCOSWA by the Swaziland Government • Eventually the Federation was registered in January 2012 by the Commissioner. The registration was applauded by both workers and civil society as it meant unified action in all fronts including the prevailing political dispensation in the country. • The three groupings then agreed on the allocation of positions in the Federation building up to Inaugural Congress. This entailed some leaders in the two Federations giving up their positions to give way to the merger.

10. The Registration and Deregistration of TUCOSWA by the Swaziland Government • A total of fourteen positions were available - SFL took five positions, SFTU also took five positions and SNAT took four positions. • The Federation was launched on 09-11 March 2012 where Government, Employers, Regional and International Labour Organizations were represented. • The Minister for Labour wrote the Federation a congratulatory letter expressing his delight that he would now have a one stop set up when dealing with labour.

11. The Registration and Deregistration of TUCOSWA by the Swaziland Government • All went well until the 6th of April when government started querying her own decisions on the registration of Tucoswa. It was clear that the pressure she was facing from higher authorities was immense as she abruptly stopped using the word Tucoswa in all her dealings with the federation. • Semantics then ensued as the status of the federation became relative. It ranged between deregistration, removed from the register of organizations and not recognized by the Swaziland Government. Whatever that meant.

12. The Registration and Deregistration of TUCOSWA by the Swaziland Government • SATUC came to the country around August 2012 in a fact finding mission. Government gave her audience and for a moment it looked like there was going to be some headway as she committed to the drafting of a memorandum of understanding on how parties were going to engage going forward. • The first hurdle was then the names of the parties to the memorandum as Government refused to refer to TUCOSWA in any form. This initiative inevitably, collapsed.

13. The Registration and Deregistration of TUCOSWA by the Swaziland Government • In August 2012, TUCOSWA filed a notice of protest action in terms of the relevant section in the Industrial Relations Act. The matter came before the Labour advisory Board which then referred the matter to a dispute resolution mechanism. • Government objected to this alleging that only registered organizations can file notices of protest action in terms of the Act. She then approached the Court in November 2012 for an order declaring TUCOSWA an organization not registered in terms of the Act.

14. The Registration and Deregistration of TUCOSWA by the Swaziland Government • She unilaterally prepared a Bill that sought to address the “lacuna” and presented it to Parliament in November. This bill it turns out was a cosmetic stunt as the Minister subsequently withdrew the Bill from Parliament. As we speak, there is no Bill pending before Parliament. • The matter was eventually argued in Court in December and the Judge flatly refused to read anything into the provision in the Act to give meaning to the intention of the legislature notwithstanding compelling rules of interpretation and the fact that this piece of legislation was a domestication of the ILO Conventions. Judgment was eventually handed down in February 2013 declaring TUCOSWA not registered in terms of the Industrial Relations Act but only exists in terms of its own Constitution.

15. The Registration and Deregistration of TUCOSWA by the Swaziland Government • It further ordered Government to engage TUCOSWA on how the two parties will work with each other pending the finalization of the Industrial Act amendments that will facilitate the registration of federations. However, Government has refused to engage with TUCOSWA but instead tried to directly communicate with the affiliates. • Police went to town with this sort of judgment as they have classified the Federation as a proscribed entity such that it is a criminal offence to wear anything with the inscription of the Federation’s name, let alone uttering its name.

16. The Registration and Deregistration of TUCOSWA by the Swaziland Government • This state of affairs led to this year’s May Day being organized in the name of the affiliates under very strict instructions from the police top brass. TUCOSWA National Office Bearers were put under house arrest and those that had made their way to the sports ground were picked from there and ordered to make a choice between being detained in the police offices or be escorted home and the later was obviously a better evil. • Such is the state of the infraction of the Freedom of Association in Swaziland as in the process Government has formed a trade union in the name of Swaziland Economic Improvement and Allied Workers Union (SEIWU) led by one former SFTU leader.

17. The Registration and Deregistration of TUCOSWA by the Swaziland Government • To qualify the statement above, Government tried to get accreditation for this trade union last year at the ILO Conference and we are told that this year Government is determined to attend the conference with this union. As to how they will maneuver this time around remains to be seen. • SEIWU celebrated its May Day this year where Government attended and some questionable employers attended the function. Of note is the fact that there were no police officers on sight in the occasion yet in our venue you could have mistaken the day for a police day.

18. SUMMARY • It is appropriate to rest one’s case at this stage and hope that the above points underscores the fact that workers in the country have been driven to collective begging and not collective bargaining as envisaged in the international instruments.