2013 Annual Survey of Violations of Trade Union Rights : Countries at Risk - Swaziland
|Publisher||International Trade Union Confederation|
|Publication Date||6 June 2013|
|Cite as||International Trade Union Confederation, 2013 Annual Survey of Violations of Trade Union Rights : Countries at Risk - Swaziland, 6 June 2013, available at: http://www.refworld.org/docid/51b8518316.html [accessed 31 August 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Poverty, inequality and unemployment have reached levels that cost lives in Swaziland. King Mswati III and a powerful political elite appointed by him control and benefit from this situation. To avoid political and economic change that could improve people's lives, the government attacks those who attempt to exercise the right to freedom of association and collective bargaining. Legal gaps are abused to prevent the unification of the trade union movement which could voice criticism and policy proposals more effectively. Strategic fragmentation weakens one of the most effective tools to achieve redistribution of wealth in a fair and socially cohesive manner – collective bargaining.
Workers and their families face major socio-economic hardship in Swaziland. The unemployment rate stands at 28.5 per cent and is even higher when including all discouraged workers (40.6 per cent) according to Labour Force Surveys carried out in 2007 and 2010. Despite its diversified production base and skilled labour force, Swaziland's annual growth rate (2.3 per cent) between 2001 and 2011 has been well below the average in sub-Saharan Africa (5.8 per cent annually). Swaziland has also one of the highest inequality rates in the world. The income share held by the highest 10 per cent is estimated at 40.1 per cent while for the lowest 10 per cent it is 1.7 per cent. Within this context it is hardly surprising that the national poverty rate is estimated at 63 per cent and 29 per cent of the population lacks food security. Widespread poverty and inequality have a significant impact on health. Life expectancy fell 5.4 years between 1980 and 2012 and was estimated at 48.9 years in 2012. The HIV prevalence rate is the highest in the world. In 2007, it was estimated that 26 per cent of the population aged between 15 and 49 years are HIV positive. This has not led King Mswati III, who has absolute discretion over national income, to introduce comprehensive social security schemes. Instead, he has accrued a personal fortune of 100 million USD and is considered one of the richest monarchs in the world.
LAST ABSOLUTE MONARCHY IN AFRICA
Even though a constitution was introduced in 2005, power relations have not changed. Swaziland remains the last absolute monarchy in Africa. King Mswati III appoints the Prime Minister, Cabinet, ambassadors, security chiefs and local chiefs. The judiciary is based on Roman-Dutch law and traditional courts practice customary law under the "Tinkhundla" system. This means that the king, local chiefs and the National Council are governed by customary law and cannot be held accountable in civil or criminal courts. In any case, the independence of the judiciary is questionable given that all judges are appointed by the king on the recommendation of the Judicial Services Commission.
Political parties are banned and freedom of speech and assembly are severely restricted by the Public Order Act of 1963 and the Suppression of Terrorism Act used by police and government to silence dissidents. As a result most journalists practice self-censorship. The Public Order Act, 1963 which was enacted by the British colonial authorities gives the police the right to "control and direct the conduct of all public gatherings" or to prevent the holding of public gatherings (Art. 3). The Suppression of Terrorism Act 2008 defines terrorism in very broad terms as "an act or threat of action that involves prejudice to national security or public safety." Furthermore, the government has absolute discretion over the classification of an organisation as a "terrorist" organisation. This power has been used in order to silence civil society groups by labelling them as "anti-Swazi" or "traitors." The People's United Democratic Movement (PUDEMO) is the main opposition party but remains banned under the Suppression of Terrorism Act 2008. Sipho Jele, a political activist, died in police custody in 2010 after being arrested for wearing a T-Shirt of PUDEMO. On 3 September 2012, security forces violently dispersed a rally organised by PUDEMO in Matsapha to draw attention to the lack of democracy in the country.
FREEDOM OF ASSOCIATION
The government aims to undermine the trade union movement by hampering the unification of the unions and by harassing and intimidating workers who want to join unions or engage in union activities.
Until the Trade Union Congress of Swaziland (TUCOSWA) demanded free and fair elections in 2013, instead of arbitrary appointments by the king, the Ministry of Labour and Social Security considered the unification of the labour movement under the federation as an "important milestone in the history of industrial relations and freedom of association in the Kingdom of Swaziland." TUCOSWA was registered on 25 January 2012 by the Ministry of Labour and Social Security in accordance with the Industrial Relation Act. In response to TUCOSWA's criticism of the absolute monarchy, the Commissioner of Labour and the Attorney General decided to de-register TUCOSWA arguing that the Industrial Relations Act does not provide for the registration of "federations" but of "organisations." The Industrial Court ruled on 27 February 2013 that the law does not provide for the registration of federations and asked the government to determine a modus operandi for registration together with TUCOSWA. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on Freedom of Association (CFA) urged the government to register TUCOSWA without delay recalling that Article 5 of ILO Convention No. 87 recognises the right of workers' organisations to establish or to join federations and confederations of their own choosing. All affiliates of TUCOSWA have petitioned the government to recognise TUCOSWA as their legitimate representative. Yet, the government refuses to meet with TUCOSWA. As a result, there is no national centre recognised by the government of Swaziland since the two national centres that existed before (Swaziland Federation of Trade Unions and Swaziland Federation of Labour) were formally dissolved to give way to the formation of TUCOSWA. Independent workers' organisations are consequently barred from participating in tripartite statutory bodies for social dialogue. Trade union activities in public places are either prohibited or can only take place with an intimidating police presence.
To mislead the international community, the Swaziland Economic Empowerment Workers Union was recognised as the body that should represent Swazi workers at the ILO. The manner in which the union was established and whether it has any membership remains unclear. Yet, it is evident that it is used to undermine legitimate unions.
The right to strike is recognised in the Industrial Relations Act and the Constitution but is prohibited in practice by the abusive application of the Public Order Act and the Suppression of Terrorism Act. Police use excessive violence to repress any strike that takes place, arresting trade unionists and their leaders and using torture to obtain information. Furthermore, the trade union movement leadership faces civil liability for damages or income losses during a strike.
Security forces prevented protest action on 12 April 2012 on the occasion of the 39th anniversary of Swaziland's state of emergency. Marches and prayer meetings were dissolved by imposing a ban on gatherings of more than two people. Trade union leaders were arrested and travel bans imposed to stop peaceful demonstrations. The First Deputy President of TUCOSWA, Sipho Kunene, and Second Deputy General Secretary Muzi Mhlanga were both arrested and later released. Wonder Mkhonza, Deputy General Secretary of the Swaziland Processing, Refining and Allied Workers' Union, Emmanuel Dlamini, Recording Secretary of the Swaziland National Association of Teachers (SNAT), and Sidumo Dlamini, Chairperson of the SNAT's Elections' Committee were arrested, detained and banned from entering Manzini or Mbabane when they tried to attend a meeting of the Conciliation, Mediation and Arbitration Commission. On 12 April 2013, Wander Mkhonza was again arrested in Lavumisa Border gate on allegations that he was in possession of seditious pamphlets belonging to a political organisation.
Armed forces blocked all main roads leading to Manzini to prevent May Day celebrations in 2012. Ten TUCOSWA banners were confiscated and TUCOSWA's second Deputy Secretary General Muzi Mhlanga, and the Hhohho Regional Chairperson of the National Public Servants and Allied Workers Union (NAPSAWU), Oscar Nkambule were arrested and detained.
On 11 July 2012, actions by the National Public Service and Allied Workers' Union (NAPSAWU), the Swaziland Transport and Allied Workers' Union (STAWU) and the Swaziland National Association of Teachers (SNAT) were met with disproportionate violence, including the use of tear gas canisters, batons and rubber bullets. NAPSAWU President Quinton Dlamini was arrested while he was on his way to support the industrial action taken by the SNAT. They were demanding a 4.5 per cent salary increase, which is way below Swaziland's inflation rate, and the withdrawal of the newly-established 14 per cent VAT on a number of commodities. On 13 September 2012, the government withdrew charges against six of the seven suspended teachers who participated in the strike.
On 9 March 2013, police violently stopped a prayer meeting on TUCOSWA's anniversary. Police, carrying batons, took control of the Caritas Centre and stopped a commemoration prayer. The Swazi Government had, without a court order, decided that the prayers, organised by TUCOSWA were illegal because the workers' group was not officially registered with the state. On 1 May 2013, police raided the head offices of TUCOSWA at 8 am, arresting the President of TUCOSWA, Barnes Dlamini, and the 1st Deputy Secretary General, Mduduzi Gina. Their arrest followed that of Vincent Ncongwane, Secretary General of TUCOSWA, Muzi Mhlanga, 2nd Deputy Secretary General, and Jabulile Shiba, the Deputy Treasurer General, who were all placed under house arrest for the entire day. May Day celebrations organized by TUCOSWA at the Salesian Sports Ground in Manzini were forced to be called off, as police prohibited workers from shouting TUCOSWA slogans or to display TUCOSWA banners.
Institutions established to promote collective bargaining at sectoral level have been weakened as a result of inadequate commitment from government and employers. Collective bargaining at enterprise level is depleted because of the increasing fragmentation of the labour market and employers frustrating good faith bargaining.
Tripartite Wage Councils were introduced to further the conclusion of sectoral level wage agreements. The Minister of Labour and Social Security appoints a chairperson into this body. Proposals are prepared by the social partners and submitted to the meeting. The chairperson has the power to make a deciding vote on outstanding issues. Wage agreements are gazetted as Regulation of Wage Orders and are automatically applicable to all workers in the sector. Wage Councils may only be initiated by the Ministry of Labour and Social Security, which has failed to do so on many occasions arguing that it is too costly. In 2010, there was no wage increase for the agricultural sector, forestry, motor engineering, or transport sector. No Wage Councils have been held for three years to negotiate wages in the commercial, retail and wholesale sector. There is also an enforcement problem, as grievance mechanisms such as the Conciliation Mediation and Arbitration Commission have been unable to enforce decisions given the backlog of cases at the Industrial Court.
The Industrial Relations Act (section 45) also promotes the establishment of Joint Negotiating Councils (JNC) to bargain over working conditions at the sectoral level. So far, only one JNC was established in the textile industry in 2005 between the Swaziland Textile Exporters Association (STEA) and the Swaziland Manufacturing and Allied Workers Union (SMAWU). But before an agreement could be reached, the STEA disbanded as a reaction to requests by the SMAWU to negotiate pay increases. On the side of the workers, there has been similar fragmentation of unions that has made it impossible to enter into united multi-employer bargaining. However, this is likely to change in the future as the trade union movement is heavily invested in sectoral mergers.
As a result, collective bargaining largely takes place at enterprise level. Agreements concluded at enterprise level can only prevail over sectoral agreements if they provide more favourable conditions to the worker. However, in most sectors, such as textile and apparel industry, the security industry, building and construction industry, employers refuse to negotiate wages at enterprise level. Although the Code of Good Practice obligates employers to declare profits so that workers can engage in well informed negotiations, employers refuse to provide this information. This proves the lack of willingness to negotiate in good faith. Threats to go on strike have failed to give bargaining leverage to unions given the excessive restrictions on the right to strike. Enterprise level bargaining has also been very resource intensive especially because of the increasingly fragmented labour market situation caused by slow economic growth and a shift towards part-time and casual employment. Companies have strategically used legal and institutional inadequacies. For example, Coca Cola, which contributes 40 per cent of the tax income of Swaziland, is using labour brokerage and subcontracting successfully to avoid collective bargaining with unions.
Trade unions in Swaziland are convinced they can only achieve workers' rights and interests when they stand united. The two national level federations therefore merged in 2012 and have the support of all sectoral federations. Mergers are completed or under way in various sectors. Workers are now collectively fighting for social security, health care, living wage, democracy and better working conditions. Yet, the government, vested with unrestricted political power, puts serious barriers in place to hinder trade unions. The de-registration of TUCOSWA has meant no union activities and meetings can be carried out without fear of interference by police. Policy proposals of workers are never heard at tripartite consultations as TUCOSWA is excluded from participation. Government and employers do not comply with their obligations when it comes to collective bargaining depriving workers of a means to realise their rights and equal income distribution.
What needs to happen in 2013?
TUCOSWA must be registered.
Political parties must be allowed to contest during elections.
The Public Order Act of 1963 and the Suppression of Terrorism Act 2008 must be repealed or amended.