Indigenisation Regulations To Be Amended

http://news.radiovop.com

20/03/2010 21:23:00

Harare, March 21, 2010 - The Zimbabwe government is within the next few days
expected to make radical changes to the controversial indigenisation
regulations announced by the Minister of Indigenisation and Empowerment,
Saviour Kasukuwere in January.

This will be a major climbdown by President Robert Mugabe and his Zanu PF
party, who have insisted that there is no going back on the regulations.

Inside sources confirmed that Kasukuwere was forced to drop his initial
regulations which were widely viewed as elitist. The amended version is said
to be structured along the lines of South Africa's Broad Based Black
Economic Empowerment (BBBEE), which was enacted in 2007 following complaints
that its predecessor the Black Economic Empowerment (BEE) Act benefited only
a small black elite.

"The changes have already been through a number of channels and if all goes
according to plan they should be presented the Council of Ministers on
Thursday, March 25," said a source close to the changes.

According to the source, close to ten changes have been made touching
timeframes for the implementation of thresholds for different sectors.

"The regulations will not be presented in a blanket manner as was the case,"
added the source.

"Each sector will come up with its own thresholds and time frames for
implementation, and there will be strict mechanisms to ensure that those who
have already benefited from previous empowerment schemes like Philip
Chiyangwa and Kasukuwere himself do not benefit alone at the expense of
ordinary Zimbabweans," said the source.

Instead of only considering blacks as indigenous, the revised law will also
accommodate those whites who have known only Zimbabwe as their own home.

Kasukuwere could not be reached for comment, but the source said he had
already completed the changes. Once they are presented to the Council of
Ministers, which comprises all members of Cabinet except President Robert
Mugabe, the provisions will be further discussed at a Cabinet meeting on
March 29, before being taken to Cabinet for rubber stamping the following
day.

There was a chorus of complaints from all corners after Kasukuwere
unilaterally gazetted the regulations. It was widely feared that the
regulations would repel potential foreign investors who were beginning to
gain some confidence in the country following the success of the inclusive
government.
 

MPs want police powers stripped further

http://www.newzimbabwe.com/

19/03/2010 00:00:00
by Lebo Nkatazo

LEGISLATORS have proposed that the powers of the police be curtailed further
beyond changes suggested in the Public Order and Security Act (POSA)
Amendment Bill, which is currently before Parliament.

A report presented to the House of Assembly on Thursday said MPs conducted
public hearings in all the country's provinces, except Mashonaland Central,
and Zimbabweans overwhelmingly said they want the powers of the police to be
further reduced.

In January, Home Affairs Permanent Secretary Melusi Matshiya appeared before
the parliamentary committee on Home Affairs to oppose changes to the law
which he said would compromise state security.

But during the hearings, Zimbabweans disputed that and called for even more
far-reaching changes, according to the parliamentary report.

"Your Committee has made the following recommendations: The Act be reviewed
beyond the current Bill as proposed by the mover to ensure that it is user
friendly; the proposed amendments by members of the public be incorporated
into the Bill," said the report.

"The powers currently reposed in the police should be reviewed and generally
curtailed and that some of them should be moved to the courts which are more
independent and objective. That the discretion which the police have on
matters affecting fundamental rights be reviewed as they have tended to use
the principal Act selectively and without objectivity."

The MPs added that POSA should be renamed to reflect a democratic and
tolerant Zimbabwe. They added that there is need for police to undergo
intensive training in human rights issues.

The MDC-T's parliamentary whip Innocent Gonese, who crafted the proposed law
and introduced it to Parliament through a Private Members Bill, said it was
necessary to amend the law because so far no-one has been convicted by the
courts for violating POSA , despite the police making thousands of arrests.

Gonese said: "The way the police regard POSA is that it is a very serious
offence such that someone who is charged is brought to court in leg irons as
if he is a dangerous criminal.

"If you look at the police officers who accompany the person to court, they
will be carrying their guns and you would think that person is an armed
robber or a hijacker, when in fact, what that person would have done is not
to have notified that he /she would hold a public meeting."

Tomana offered new post

http://www.zimdiaspora.com

Saturday, 20 March 2010 18:38 Editor News

Harare - South African president and SADC facilitator Jacob Zuma offered
controversial Zimbabwe Attorney-General and Zanu Pf apologist Johannes
Tomana a High court judge's  position in return for him relinquishing the
post that he was illegally appointed by President Robert Mugabe.

Zuma who was in Harare this week to facilitate talks aimed at resolving
outstanding issues to the Global Political Agreement between Zanu Pf and
MDC, met Tomana for private talks. The South African President also met
controversial Reserve Bank of Zimbabwe Governor Gideon Gono and MDC
treasurer and deputy minister  of agriculture designate Roy Bennet.

Sources close to Zuma's facilitating team told Zimdiapsora that  the South
African President told Tomana to give up the post of Attorney-General  in
return of being appointed a High Court Judge.

"Zuma told Tomana that he was illegally appointed by Mugabe. He was told to
give up  the AG's post in order to save the country from further political
and economic decline, " said the source.

Tomana is responsible for unjustifiably prosecuting several Movement for
Democratic Change Officials and supporters on trumped up charges. Several
MDC parliamentarians have been wrongly prosecuted in an effort to reduce the
MDC's dominance in parliament.

The civil society has also not been spared with several human rights
activists among them award winning Jestina Mukoko being abducted by the
dreaded Central Intelligence Organization and prosecuted by Tomana on
unfounded allegations.

The courts have however dismissed virtually all the  cases brought by Tomana
and his overzealous lieutenants.

Meanwhile, the sources also said Central Bank Governor Gideon Gono was also
offered the position of Zimbabwe's Ambassador to South Africa to replace
long serving  Simon Khaya Moyo who was last year appointed Zanu PF's
National Chairman.

"Zuma also told Gono that he was a stumbling block to the economic revival
of the country and was urged to  sacrifice his loyalty to Zanu PF and
relinquish his post," said the sources.

The sources also Zuma also told Roy Bennet to consider another ministerial
portfolio other than agriculture as Zanu PF was now willing to have a former
white farmer occupying a senior agricultural portfolio.

"Zanu Pf feel intimidated by Bennet and so they want him to occupy a less
influential ministerial post," said the source.

Zuma who was in the country to break the deadlock over the GPA talks gave
the negotiating teams up to the end of the month to resolve the outstanding
issues among the illegal appointments of Tomana and Gono and the appointment
of MDC provincial governors.

‘Security forces blocking unionist from Tribunal’

http://www.zimonline.co.za

by Caroline Mvundura Saturday 20 March 2010

HARARE – Zimbabwe’s security forces, who have hounded trade unionist
Gertrude Hambira into hiding in South Africa, want to prevent the General
Agriculture and Plantation Workers’ Union of Zimbabwe (GAPWUZ) leader from
attending a regional court hearing on commercial farmers later this month, a
top official revealed Friday.

Hambira fled to South Africa last month after Zimbabwe’s feared secret
agency – the Central Intelligence Organisation (CIO) – and officers from the
law and order section at the notorious Harare Central Police Station raided
her offices several times in an attempt to arrest her for releasing a video
showing how President Robert Mugabe’s supporters committed rights abuses and
other crimes against farm workers.

The official, who spoke on condition of anonymity said security agents
feared that Hambira’s involvement at the Southern African Development
Community (SADC) Tribunal could help strengthen and legitimise the case of
hundreds of white commercial farmers seeking redress at the regional court
after they were forced off their farms.

This, according to the source, could force other regional leaders to act on
Zimbabwe.

“The pressure is that they fear Hambira will actively participate at the
hearing and use our report to buttress the fact that farm workers were
affected by land reforms. This could prompt regional leaders to try to act
on Zimbabwe. In their latest raids on our offices, they had been talking
about the Tribunal,” said the official, adding the security forces had
continued to raid the GAPWUZ head offices in Harare anticipating that they
may swoop on Hambira and other top unionists.

The official said the police had tried to pry on any evidence linking the
union to the upcoming Tribunal.

Efforts to talk to Hambira were fruitless on Friday but on Monday, the
International Labour Organisation (ILO) expressed serious reservations on
the interference of the country’s security forces in trade unionism.

The GAPWUZ video that is also accompanied by a report highlights how basic
labour laws were violated and contains evidence of people who were beaten
up, harassed and sometimes shot by Mugabe's militia under the guise of
redistributing arable land previously in the hands of whites.

The decade-long farm invasions which the 86-year-old Mugabe says were
necessary to ensure blacks also had access to arable land that they were
denied by previous white-led governments have been blamed for plunging
Zimbabwe into food shortages.

Once a net food exporter Zimbabwe has avoided mass starvation over the past
decade only because international relief agencies were quick to chip in with
food handouts. – ZimOnline

Zimbabwe's new watchdog promises to open up media

http://www.monstersandcritics.com/

Mar 19, 2010, 22:04 GMT

Harare - After eight years of extreme media repression, a newly-created
autonomous commission declared Friday it would promote and protect media
freedom.

The Zimbabwe Media Commission (ZMC), a creation of the year-old
power-sharing government between autocrat president Robert Mugabe and
pro-democracy leader Morgan Tsvangirai, who is now the prime minister, said
it held its first meeting Thursday, after its appointments were approved by
Mugabe.

Commission chairman Godfrey Majonga, a former journalist, said in a
statement Friday that the watchdog body had resolved to carry out its
mandate on behalf of the coalition government, which has recognized the
right of freedom of expression and the vital role of the media in a
multiparty democracy.

Under Mugabe, Zimbabwe passed press gag laws in 2002 that closed seven
newspapers, provided legal sanction for the arrest and assault of scores of
journalists and left Zimbabweans with only state-controlled radio,
television and press. Only three weekly independent newspapers survived the
dragnet.

The 2002 laws criminalized journalists who practised without a licence from
a panel controlled by Mugabe's propaganda bosses. Visiting foreign
journalists were effectively banned from entering Zimbabwe.

Creation of the nine-member free press watchdog marked the first independent
body appointed under a series of democratic reforms agreed to by Mugabe and
Tsvangirai. Mugabe delayed the appointments for four months, and it took
another three months for the body to begin working.

The commission met Friday with Tsvangirai. Information Minister Webster
Shamu, a Mugabe appointee, said at the meeting that there would be no
problem with the launch of two new daily newspapers that have been waiting
for over a year to publish.

The last independent daily newspaper, The Daily News, was violently shut by
police in 2003. Its circulation had soared when it first appeared in 1999,
the first newspaper that dared to criticize Mugabe's 20-year hold on power.

The media panel's first meeting came as South African President Jacob Zuma
appeared to have wrung concessions out of Mugabe in talks to break the
deadlock with Tsvangirai over implementation of power- sharing democratic
reforms.

Mugabe has yet to finalise appointments to the Zimbabwe Electoral
Commission, meant to be the country's first independent electoral body since
independence in 1980, and to the Zimbabwe Human Rights Commission.

Previous electoral bodies have been controlled by friends of Mugabe's
ZANU(PF) party and have been accused of complicity in massive fraud and
vote-rigging.

 

Tsvangirai To Address Zimbabwe MPs Retreat

http://news.radiovop.com

20/03/2010 21:08:00

Harare, March 21, 2010 - Zimbabwe's Prime Minister Morgan Tsvangirai will on
Monday hold a no holds barred meeting with Members of Parliament and
Ministers in an attempt to contain growing rifts between two key arms of
government, the executive and legislature.

Sources confirmed this weekend that the "Back benchers and Front Benchers
retreat" will be held at the Wild Geese Lodge in Harare on
Monday. Tsvangirai will present a keynote address, while the Speaker of the
House of Assembly, Lovemore Moyo will also make a presentation on the roles
and functions of MPs and ministers.

According to sources, the meeting seeks to draw the line between the
executive and the legislature following recent misunderstandings
caused by investigations into dealings on Chiadzwa diamonds by the
Parliamentary Portfolio Committee on Mines and Energy, whose
investigations almost opened a can of worms implicating senior government
officials in shoddy dealings in the gems.

"The meeting will look at the rules and regulations of Parliament and
Cabinet, the roles and functions of these two arms of government, the
accountability of ministers to parliament and generally how the August house
should handle business of government" said the source.

"There are some ministers who have deliberately disregarded orders from
portfolio committees, saying they were not answerable to them.
This has caused serious confusion, and it is even more complex for the PM
because he is supposed to be the leader of government business in
Parliament."

Among other things, said the source, the meeting will define roles and
functions of MPs and ministers. This is in response to recent
complaints by some ministers that Parliament was now over stepping on its
role of being a watchdog on the executive.

"One such example is the current dispute around the Chiadzwa diamonds, where
some members of Cabinet feel the Parliamentary portfolio committee on mines
and is going beyond its limit by investigating ministers and calling for the
release of sensitive information," said the source.

It could not be immediately established if the meeting was in any way part
of the "package of measures" adopted by Zimbabwe's governing parties last
Thursday following two day talks with South African President Jacob Zuma.
 

MDC youths bring central Harare to a halt

Finance Minister secures aid from Australia

http://www.zimonline.co.za

by Own Corespondent Saturday 20 March 2010

HARARE - Australia has pledged A$13 million (about US$12 million) to improve
the provision of clean water in Zimbabwe and strengthen food security in the
southern African country.

Australian Foreign Minister Stephen Smith said his country believes it has a
responsibility to support Prime Minister Tsvangirai and his MDC-T ministers
in their effort to bring positive change to Zimbabwe.

He said Australia would continue to bolster the cause of reform in Zimbabwe
through targeted assistance which includes longer-term measures to help
restore essential services, such as water, education and healthcare.

"To advance this effort, Australia will provide a further assistance package
of $13 million to improve access to clean water, sanitation services and
food security in Zimbabwe," Smith said Friday after meeting Zimbabwe's
Finance Minister Tendai Biti in Sydney.

The assistance would build on Australia's efforts to improve Zimbabwe's
basic infrastructure such as pipes and boreholes, and help reduce the threat
of diseases such as cholera.

As part of the package, Smith said Australia would provide A$8 million or
US$7.4 million for activities supporting the UN Children's Fund (UNICEF)'s
programme for water and sanitation rehabilitation in Zimbabwe.

The UNICEF programme would work directly with local authorities to
rehabilitate systems and improve their capacity to deliver services.

"This will increase access to safe drinking water, sanitation and hygiene
services for over two million people in urban and rural areas, including
Zimbabwe's second-largest city, Bulawayo," Smith said.

A further A$5 million (about US$4.6 million) would be provided to Australian
non-government organisations to work with their Zimbabwean partners in water
and sanitation and food security.

"Australia understands the risks of providing assistance in Zimbabwe. We
work with reputable organisations and have implementation and monitoring
systems in place to minimise the risk of funds being misused or
 misdirected," the Australian minister said.

Australia was one of the first Western countries to give assistance to
Zimbabwe's new coalition government soon after its formation in February
last year.

Sydney has so far provided "humanitarian plus" assistance to the new Harare
regime amounting to A$18 million (US$16.6 million) since last year. -
ZimOnline

Zimbabwe Power-Sharing Parties Upbeat on Zuma Mediation - But Mistrust Lingers

http://www1.voanews.com

Political sources said problems with power sharing in Zimbabwe could be
referred to a Southern African Development Community summit if the
commitments facilitated by President Robert Mugabe are not fulfilled by the
end of March

Blessing Zulu | Washington 19 March 2010

All three of the parties in Zimbabwe's often-fractious national unity
government have voiced satisfaction with the mediation concluded on Thursday
by South African President Jacob Zuma, and optimism as to the outlook for
their power-sharing arrangement.

But political analysts and influential sources in the governing parties said
the gap between them remains wide and tensions could soon escalate again.

Such officials told VOA they do not rule out calling for a a full summit of
the Southern African Development Community to ensure that the 2008 global
political agreement will be fully implemented.

Already on Friday there were indications that some of the agreements reached
with the help of Mr. Zuma were eroding. Political sources said some in
President Robert Mugabe's ZANU-PF were suggesting Roy Bennett, the treasurer
of Prime Minister Morgan Tsvangirai's wing of the Movement for Democratic
Change, be assigned a different post than deputy agriculture minister.

The Tsvangirai MDC has demanded Bennett be sworn in but President Mugabe has
refused, saying charges that Bennett conspired to overthrow his former
government must first be disposed of in High Court, where Bennett is
currently standing trial.

ZANU-PF opponents of the appointment say Bennett, who is white, might
sabotage Zimbabwean agriculture as a commercial farmer who lost his property
to land reform. But MDC sources said such ZANU-PF officials are merely
afraid Bennett might expose their ownership of multiple farms, or their
failure to plant crops.

Officials in the security apparatus, meanwhile. were said to be putting up
resistance to the reported agreement in the talks to retire Reserve Bank
Governor Gideon Gono or Attorney General Johannes Tomana, or both, which the
Tsvangirai MDC has been demanding. Mr. Mugabe reappointed Gono and named
Tomana in late 2008 without consulting his future governing partners.

Sources said the principals agreed in the Zuma-led talks that one of them
must go.The MDC is said to be divided as to which of those two men should
step down.

But Zimbabwe Independent journalist Dumisani Muleya said on VOA Studio 7's
LiveTalk program Friday that to make Tomana's departure more palatable, Mr.
Zuma has recommended he be named to the High Court, which would not be
agreeable to the MDC given his role in personally prosecuting Roy Bennett.

Meanwhile, ZANU-PF is also said to be proposing to delay the swearing-in of
MDC provincial governors until the terms of the incumbents end in August.

Mr Zuma asked negotiators for the three parties in the unity government to
prepare a final report for him by the end of this month. Then he will report
to Mozambican President Armando Guebuza, now chairman of the SADC troika on
politics, defense and security.

Spokesman Nelson Chamisa of the Tsvangirai MDC formation said Friday that
his party is confident all outstanding issues can be settled.

Spokesman Edwin Mushoriwa of the rival MDC formation headed by Deputy Prime
Minister Arthur Mutambara was also upbeat on developments.

ZANU-PF Information Committee member Chris Mutsvangwa rejected the
proposition that his party has been blocking GPA implementation, as has been
alleged by the Tsvangirai MDC and many observers.

ILO Report: Truth, reconciliation and justice in Zimbabwe

http://www.zimonline.co.za

Saturday 20 March 2010

Truth, reconciliation and justice in Zimbabwe

Report of the Commission of Inquiry appointed under article 26 of the
Constitution of the International Labour Organisation to examine the
observance by the Government of Zimbabwe of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and the Right
to Organise and Collective Bargaining Convention, 1949 (No. 98) December
2009

International Labour Office, Geneva

Summary

In November 2008, the Governing Body of the ILO decided to set up a
Commission of Inquiry, in accordance with article 26, paragraph 4, of the
ILO Constitution, to examine the complaints filed by a number of delegates
to the Conference concerning the observance by the Government of Zimbabwe of
Conventions Nos 87 and 98 on freedom of association. As recalled by the
Director-General of the ILO at the inaugural session of the Commission, this
was the first occasion on which a Commission of Inquiry had arisen out of
simultaneous complaints from Workers' and Employers' delegates to the
Conference.

The complaints examined by the Commission of Inquiry referred in particular
to serious allegations of violations of basic civil liberties, including the
quasi-systematic arrest, detention, harassment and intimidation of trade
union leaders and members for the exercise of legitimate trade union
activities.

The members of the Commission of Inquiry were: Judge Raymond Ranjeva
(Madagascar, Chairperson), Dr Evance Kalula (Zambia) and Dr Bertrand
Ramcharan (Guyana).

In view of political developments leading to a Global Political Agreement,
the Commission of Inquiry undertook a preliminary visit of goodwill and
initial contacts to Zimbabwe in May 2009 to familiarise itself with the
situation in the country following the establishment of the inclusive
Government. The Commission explained to those whom it met that, while
working in the judicial spirit that characterizes ILO Commissions of
Inquiry, it was at the same time desirous of contributing to the process of
reconciliation and healing in Zimbabwe. The Commission then undertook a full
fact-finding mission to Zimbabwe in August 2009.

The Report of the Commission of Inquiry, in addition to outlining the
substance of the communications received, reviews the historical and
socio-economic context of trade unionism in Zimbabwe, both during the period
of colonization and white minority government, and following independence in
1980. It reports on the current socio-economic context in the country and
reviews the national legislation in relation to freedom of association. It
then summarizes the comments made by the ILO supervisory bodies over the
years on the application of Conventions Nos 87 and 98 in Zimbabwe.

The report summarizes the information on the factual matters investigated by
the Commission relating to the systematic violation of freedom of
association rights. More specifically, it discusses allegations concerning
the right to strike and demonstrate; arrests, detentions, assaults and
torture; intimidation and harassment of trade unionists and, in particular,
teachers, farm workers and the business community; interference in trade
union affairs and trade union discrimination; collective bargaining and
social dialogue; and the institutional protection of trade union rights. It
also considers statements concerning attempts at a healing and
reconciliation process in Zimbabwe.

In its conclusions, the Commission of Inquiry notes that, by and large, it
found little disagreement between the complainants and the Government of
Zimbabwe in relation to many of the allegations. The Government of Zimbabwe
accepted that "things" had happened, that they were regrettable and that it
was important to ensure that such "things" did not happen again. However,
there was a certain amount of disagreement as to the extent of the
regrettable events and their causes.

The Commission of Inquiry concludes that there was systematic, and even
systemic, violation of the Conventions in the country. It saw a clear
pattern of arrests, detentions, violence and torture of trade union leaders
and members by the security forces coinciding with Zimbabwe Congress of
Trade Unions (ZCTU) nationwide events, indicating some centralized direction
to the security forces to take such action and a clear pattern of control
over ZCTU trade union gatherings through the application of the Public Order
and Security Act (POSA). It noted the systematic targeting of ZCTU officials
and members, particularly in rural areas, involving significant violence and
anti-union discrimination in employment, in what appeared to be a calculated
attempt to intimidate and threaten ZCTU members. It also noted with
particular concern the routine use of the police and army against strikes,
widespread interference in trade union affairs and the failure to guarantee
judicial independence and the rule of law, resulting in a situation of
impunity for those perpetrating atrocities.

In its recommendations, the Commission of Inquiry therefore calls for:

?? the harmonization of the relevant legislative texts, and particularly the
Labour Act, the Public Service Act and the Public Order and Security Act,
with Conventions Nos 87 and 98, as requested by the ILO supervisory bodies;

?? the cessation with immediate effect of all anti-union practices, as
documented in its report;

?? the Zimbabwe Human Rights Commission to be rendered operational as soon
as possible, with adequate resources;

?? the provision of training on freedom of association and collective
bargaining, civil liberties and human rights to key personnel in the
country, most notably the police, security forces and the social partners;

?? the reinforcement of the rule of law and the role of the courts in
Zimbabwe, by ensuring that the courts are respected, properly resourced and
provided with appropriate training and support;

?? the continued strengthening of social dialogue; and

?? the continuation of ILO technical assistance in these areas.

Finally, the Commission of Inquiry observes that it witnessed a country in
deep crisis, which is facing the challenge of building a bridge from
division and social tension to a peaceful and just future. The move towards
truth, reconciliation and justice needs to be sustained and the Commission
of Inquiry hopes that its report will contribute to this process. It
expresses its firm belief in a positive future for Zimbabwe and affirms that
the implementation of the two Conventions on freedom of association can pave
the way to genuine democracy. And, in conclusion, it emphasizes that the
rule of law, democracy and respect for human rights beckon the country to
higher ground. Zimbabweans expect and deserve no less.

Acronyms

Zimbabwean workers' organizations

CASWUZ Communication and Allied Services Workers' Union of Zimbabwe

GAPWUZ General Agriculture and Plantation Workers' Union of Zimbabwe

PTUZ Progressive Teachers' Union of Zimbabwe

ZCTU Zimbabwe Congress of Trade Unions

ZFTU Zimbabwe Federation of Trade Unions

ZIMTA Zimbabwe Teachers' Association

Zimbabwean employers' organization

EMCOZ Employers' Confederation of Zimbabwe

National institutions

CIO Central Intelligence Organization

NEC National Employment Council

ONHRI Organ for National Healing, Reconciliation and Integration

PSC Public Service Commission

TNF Tripartite Negotiating Forum

International and regional workers' and employers' organizations

ICFTU International Confederation of Free Trade Unions (now the ITUC)

IOE International Organisation of Employers

ITUC International Trade Union Confederation (formerly the ICFTU)

OATUU Organization of African Trade Union Unity

PAEF Pan-African Employers' Federation

UNI Global Union

WFTU World Federation of Trade Unions

Zimbabwean political parties

MDC-M Movement for Democratic Change-Mutambara

MDC-T Movement for Democratic Change-Tsvangirai

ZANU-PF Zimbabwe African National Union-Patriotic Front

ZAPU Zimbabwe African People's Union

Zimbabwean legislative and other instruments

GPA Global Political Agreement

POSA Public Order and Security Act

Regional organizations

AU African Union

SADC Southern African Development Community

Part I.

Introduction and background to the case

1. Filing of the complaints and appointment of the Commission

I. Filing of the complaints

1. Through a statement addressed to the 97th Session of the International
Labour Conference during its 16th plenary sitting held on 13 June 2008, 13
Workers' delegates filed a complaint under article 26 of the Constitution of
the International Labour Organization (ILO) against the Government of
Zimbabwe for non-observance of the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), and the Right to Organise
and Collective Bargaining Convention, 1949 (No. 98), ratified by Zimbabwe on
9 April 2003 and 27 August 1998, respectively. The complaint was worded as
follows:

We, Workers' delegates to the 97th Session of the International Labour
Conference (Geneva, June 2008), whose names are included hereunder, support
the conclusions on Zimbabwe adopted in the Committee on Application of
Standards, calling for a complaint under article 26 of the ILO Constitution
against the Government of the Republic of Zimbabwe for violations of the
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), and the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), ratified by Zimbabwe on 9 April 2003 and 27
August 1998, respectively.

Since 2002, the Conference Committee has consistently attempted to create a
constructive dialogue with the Government to find durable solutions to
ever-increasingly serious violations of these Conventions. To this end, it
has requested the Government on numerous occasions to accept a direct
contacts mission, as well as a high-level ILO technical assistance mission.
The Government has systematically refused the missions requested by the
Conference Committee and last year, while providing written information,
declined to participate in the Committee's proceedings in respect of its
application of the freedom of association Convention.

Again, the Government declined to come before the Committee this year,
despite repeated requests for it to do so and the preparation of an advance
list giving it sufficient time to prepare. The Conference Committee fully
discussed the case and placed its conclusions in a special paragraph for
continued failure to implement the freedom of association Convention.

Grave violations of freedom of association persist and have even increased.
In the last few months, trade union leaders and members have been
systematically arrested, detained, harassed and intimidated for the exercise
of legitimate trade union activity. Teachers have been targeted, physically
assaulted and threatened. The Public Order and Security Act (POSA) and the
Criminal Law (Codification and Reform) Act of 2006 have been systematically
used to repress basic civil liberties and trade union rights.

Taking into account all of the above factors, we, the undersigned, feel
obliged to lodge a complaint under article 26 of the ILO Constitution and
call upon the Governing Body to propose measures for the effective
observance of these fundamental Conventions in law and in practice. The
complainants reserve the right to submit additional information hereto at
the

appropriate time.

Alina Rantsolase, South Africa (substitute delegate to Ebrahim Patel)

Julio Robert Gomez Esguerra, Colombia

Jan Sithole, Swaziland

Maria Fernanda Francisco, Angola

Leroy Trotman, Barbados

Joao Felicio, Brazil

Japhta Radibe, Botswana

Sharan Burrow, Australia

Mody Guiro, Senegal

Khurshid Ahmed, Pakistan

Rabiatou Sera Diallo, Guinea

Basile Mahagan Gae, Côte d'Ivoire

Luc Cortebeeck, Belgium

2. By a letter the same day, addressed to the President of the International
Labour Conference, 13 Employers' delegates filed a complaint under article
26 of the Constitution of the ILO against the Government of Zimbabwe for
non-observance of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87). The complaint was worded as

follows:

Taking into account the discussion that took place at the Committee on
Application of Standards and the conclusions adopted that followed, the
undersigned Employers' delegates to the 97th Session of the International
Labour Conference (Geneva, June 2008), would like to file a complaint under
article 26 of the ILO Constitution against the Government of Zimbabwe for
non-observance of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), ratified by Zimbabwe on 9 April 2003,
and which came into force for Zimbabwe on 9 April 2004.

This complaint is based in the following:

- The persistent obstructionist attitude demonstrated by the Government
through its refusal to come before the Committee on Application of Standards
in two consecutive years and thus seriously hamper the work of the ILO
supervisory mechanisms to review the application of voluntarily ratified
Conventions.

- The contempt shown by the Government to the Committee on Application of
Standards and the gravity of the violations observed had led this Committee
to decide last year to mention this case in a special paragraph of its
report and to call upon the Government to accept a high-level technical
assistance mission.

- The Government's refusal of the high-level technical assistance mission
that the Committee on Application of Standards had invited it to accept.

- The serious allegations of the violation of basic civil liberties,
including the quasi-systematic arrest and detention of trade unionists
following their participation in public demonstrations made by the Committee
of Experts.

- The continual recourse made by the Government to the Public Order and
Security Act (POSA) and lately, to the Criminal Law (Codification and
Reform) Act of 2006 to repress basic civil liberties and trade union rights.
In the last few months, trade union leaders and members have seen
systematically arrested, detained, harassed and intimidated for the exercise
of legitimate trade union activity.

- The vast information presented to the ILO supervisory bodies concerning
the surge in trade union rights and human rights violations in the country
and the ongoing threats to trade unionists' physical safety. In particular,
the recent arrests of Lovemore Motombo and Wellington Chibebe and the
massive violence against teachers as well as the serious allegations of
arrest and violent assault following the September 2006 demonstrations.

For the reasons stated above the undersigned request you to bring this
complaint under article 26 of the ILO Constitution to the attention of the
ILO Governing Body in its next session to propose measures for the effective
observance of this Convention in law and in practice and to consider the
appointment of a Commission of Inquiry to Zimbabwe. The complainants reserve
the right to submit additional information.

Maria Paz Anzorreguy, on behalf of Mr Edward Potter,

Employers' delegate, United States

Daniel Funes De Rioja, Employer, Argentina

Emmanuel Julien, MEDEF, France

Vic van Vuuren, Employer, South Africa

Ansoumane Savané, CNP, Guinea

Ronnie L. Goldberg, Employer, United States

Peter Anderson, Employers' delegate, Australia

Andrew Moore, Employer, United Kingdom

Ali M'Kaissi, Tunisia

Peter Tomek, Employer, Austria

Jacqueline Coke-Lloyd, Employer, JEF, Jamaica

Jacqueline Mugo, Employer, Kenya

Armando Urtecho, Honduras

II. Provisions of the Constitution of the International Labour Organization
relating to complaints concerning the application of ratified Conventions

3. The procedure under which the Workers' and Employers' delegates filed
their complaints against the Government of Zimbabwe is set out in articles
26-29 and 31-34 of the ILO Constitution. These articles provide for the
procedure by which a Commission of Inquiry may be established and set out
its terms of reference and functions to be fulfilled.

4. The relevant provisions are as follows:

Article 26

1. Any of the Members shall have the right to file a complaint with the
International Labour Office if it is not satisfied that any other Member is
securing the effective observance of any Convention which both have ratified
in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a
complaint to a Commission of Inquiry, as hereinafter provided for,
communicate with the government in question in the manner described in
article 24.

3. If the Governing Body does not think it necessary to communicate the
complaint to the government in question, or if, when it has made such
communication, no statement in reply has been received within a reasonable
time which the Governing Body considers to be satisfactory, the Governing
Body may appoint a Commission of Inquiry to consider the complaint and to
report thereon.

4. The Governing Body may adopt the same procedure either of its own motion
or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of article 25 or 26 is being considered by
the Governing Body, the government in question shall, if not already
represented thereon, be entitled to send a representative to take part in
the proceedings of the Governing Body while the matter is under
consideration. Adequate notice of the date on which the matter will be
considered shall be given to the government in question.

Article 27

The Members agree that, in the event of the reference of a complaint to a
Commission of Inquiry under article 26, they will each, whether directly
concerned in the complaint or not, place at the disposal of the Commission
all the information in their possession which bears upon the subject-matter
of the complaint.

Article 28

When the Commission of Inquiry has fully considered the complaint, it shall
prepare a report embodying its findings on all questions of fact relevant to
determining the issue between the parties and containing such
recommendations as it may think proper as to the steps which should be taken
to meet the complaint and the time within which they should be taken.

Article 29

1. The Director-General of the International Labour Office shall communicate
the report of the Commission of Inquiry to the Governing Body and to each of
the governments concerned in the complaint, and shall cause it to be
published.

2. Each of these governments shall within three months inform the
Director-General of the International Labour Office whether or not it
accepts the recommendations contained in the report of the Commission; and
if not, whether it proposes to refer the complaint to the International
Court of Justice.

Article 31

The decision of the International Court of Justice in regard to a complaint
or matter which has been referred to it in pursuance of article 29 shall be
final.

Article 32

The International Court of Justice may affirm, vary or reverse any of the
findings or recommendations of the Commission of Inquiry, if any.

Article 33

In the event of any Member failing to carry out within the time specified
the recommendations, if any, contained in the report of the Commission of
Inquiry, or in the decision of the International Court of Justice, as the
case may be, the Governing Body may recommend to the Conference such action
as it may deem wise and expedient to secure compliance therewith.

Article 34

The defaulting government may at any time inform the Governing Body that it
has taken the steps necessary to comply with the recommendations of the
Commission of Inquiry or with those in the decision of the International
Court of Justice, as the case may be, and may request it to constitute a
Commission of Inquiry to verify its contention. In this case the provisions
of articles 27, 28, 29, 31 and 32 shall apply, and if the report of the
Commission of Inquiry or the decision of the International Court of Justice
is in favour of the defaulting government, the Governing Body shall
forthwith recommend the discontinuance of any action taken in pursuance of
article 33.

III. Provisions of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) and the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98)

5. The basic provisions of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98) are as follows:

FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE CONVENTION,
1948 (NO. 87)

Article 2

Workers and employers, without distinction whatsoever, shall have the right
to establish and, subject only to the rules of the organisation concerned,
to join organisations of their own choosing without previous authorisation.

Article 3

1. Workers' and employers' organisations shall have the right to draw up
their constitutions and rules, to elect their representatives in full
freedom, to organise their administration and activities and to formulate
their programmes.

2. The public authorities shall refrain from any interference which would
restrict this right or impede the lawful exercise thereof.

Article 4

Workers' and employers' organisations shall not be liable to be dissolved or
suspended by administrative authority.

Article 5

Workers' and employers' organisations shall have the right to establish and
join federations and confederations and any such organisation, federation or
confederation shall have the right to affiliate with international
organisations of workers and employers.

Article 6

The provisions of Articles 2, 3 and 4 hereof apply to federations and
confederations of workers' and employers' organisations.

Article 7

The acquisition of legal personality by workers' and employers'
organisations, federations and confederations shall not be made subject to
conditions of such a character as to restrict the application of the
provisions of Articles 2, 3 and 4 hereof.

Article 8

1. In exercising the rights provided for in this Convention workers and
employers and their respective organisations, like other persons or
organised collectivities, shall respect the law of the land.

2. The law of the land shall not be such as to impair, nor shall it be so
applied as to impair, the guarantees provided for in this Convention.

Article 9

1. The extent to which the guarantees provided for in this Convention shall
apply to the armed forces and the police shall be determined by national
laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of article 19
of the Constitution of the International Labour Organisation the
ratification of this Convention by any Member shall not be deemed to affect
any existing law, award, custom or agreement in virtue of which members of
the armed forces or the police enjoy any right guaranteed by this
Convention.

Article 10

In this Convention the term "organisation" means any organisation of workers
or of employers for furthering and defending the interests of workers or of
employers.

Article 11

Each Member of the International Labour Organisation for which this
Convention is in force undertakes to take all necessary and appropriate
measures to ensure that workers and employers may exercise freely the right
to organise.

RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 (NO. 98)

Article 1

1. Workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts
calculated to -

(a) make the employment of a worker subject to the condition that he shall
not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of
union membership or because of participation in union activities outside
working hours or, with the consent of the employer, within working hours.

Article 2

1. Workers' and employers' organisations shall enjoy adequate protection
against any acts of interference by each other or each other's agents or
members in their establishment, functioning or administration.

2. In particular, acts which are designed to promote the establishment of
workers' organisations under the domination of employers or employers'
organisations, or to support workers' organisations by financial or other
means, with the object of placing such organisations under the control of
employers or employers' organizations, shall be deemed to constitute acts of
interference within the meaning of this Article.

Article 3

Machinery appropriate to national conditions shall be established, where
necessary, for the purpose of ensuring respect for the right to organise as
defined in the preceding Articles.

Article 4

Measures appropriate to national conditions shall be taken, where necessary,
to encourage and promote the full development and utilisation of machinery
for voluntary negotiation between employers or employers' organisations and
workers' organisations, with a view to the regulation of terms and
conditions of employment by means of collective agreements.

Article 5

1. The extent to which the guarantees provided for in this Convention shall
apply to the armed forces and the police shall be determined by national
laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of article 19
of the Constitution of the International Labour Organisation the
ratification of this Convention by any Member shall not be deemed to affect
any existing law, award, custom or agreement in virtue of which members of
the armed forces or the police enjoy any right guaranteed by this
Convention.

Article 6

This Convention does not deal with the position of public servants engaged
in the administration of the State, nor shall it be construed as prejudicing
their rights or status in any way.

IV. Summary of measures taken by the Governing Body of the ILO following the
filing of the complaints

6. At its 303rd Session (November 2008), the Governing Body of the ILO had
before it a report by its Officers concerning the subject of the complaints.
The report included the following passages: 1

It is now for the Governing Body to adopt the necessary decisions as to
procedure regarding the complaints submitted under article 26 of the
Constitution.

It will be recalled, in this connection, that the Committee on Freedom of
Association has been examining a number of complaints submitted by workers'
organizations alleging violation of trade union rights in Zimbabwe.

It will also be remembered that the Committee of Experts on the Application
of Conventions and Recommendations has made observations to the Government
of Zimbabwe regarding the observance of the Conventions referred to in the
complaint submitted under article 26 of the Constitution and that in 2002,
2003, 2004 and 2005 the Committee on the Application of Standards of the
Conference discussed some matters relating to the observance, in practice
and under law, of Convention No. 98, as well as in 2006, 2007 and 2008 of

Convention No. 87.

In the present case, the complaints filed by a number of delegates to the
Conference, under article 26 of the Constitution, largely concern matters
which are already before the Committee on Freedom of Association in the
context of the special freedom of association procedure. The Committee has
not yet proceeded with the examination of Case No. 2645, which contains a
number of the allegations that were also put forward in the article 26
complaints, as it still awaits the Government's reply. In accordance with
established practice, when a Commission of Inquiry is appointed, the
relevant matters before the various ILO supervisory bodies are referred to
this Commission.

V. Appointment of the Commission

7. The Governing Body decided to refer the whole matter to a Commission of
Inquiry, in accordance with article 26, paragraph 4, of the Constitution of
the ILO. During the same session, the Governing Body decided that the
Commission of Inquiry would have the following composition: 2

Chairperson: Judge Raymond Ranjeva (Madagascar) - Former Vice-President of
the International Court of Justice; Conciliator at the World Bank
International Centre for Settlement of Investment Disputes.

1 ILO, Report of the Officers of the Governing Body, Complaints concerning
the non-observance by Zimbabwe of the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), and the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98), made by
delegates to the 97th Session (2008) of the International Labour Conference
under article 26 of the ILO Constitution, 303rd Session (Geneva, November
2008), paras 1 and 2.

2 ILO, Report of the Director-General, Eighth Supplementary Report:
Observance by Zimbabwe of the Freedom of Association and Protection of the
right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98): Appointment by the
Governing Body of a Commission of Inquiry in accordance with article 26(4)
of the Constitution of the ILO, 303rd Session (Geneva, November 2008), para.
2.

Members: Dr Evance Kalula (Zambia) - Professor of Employment Law and Social
Security and Director of the Institute of Development and Labour Law of the
University of Cape Town; Chairperson of the South African Employment
Conditions Commission.

Dr Bertrand Ramcharan (Guyana) - Former Acting UN High Commissioner for
Human Rights and UN Under Secretary-General; Commissioner of the
International Commission of Jurists; former professor (Swiss Chair of Human
Rights), Graduate Institute of International and Development Studies.

2. Relations with the ILO concerning freedom of association

8. Zimbabwe joined the ILO upon gaining independence in 1980 and has
currently ratified 26 Conventions, including all the fundamental
Conventions. Zimbabwe's observance of the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), and the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), has been
examined regularly by the Committee of Experts on the Application of
Conventions and Recommendations. The Conference Committee has discussed the
case of Zimbabwe four times in relation to Convention No. 98 and three times
in relation to Convention No. 87, mentioning the country in a special
paragraph of its report once for Convention No. 98 and twice for Convention
No. 87. 3 Nine complaints against Zimbabwe have been considered by the
Committee on Freedom of Association, seven of which have been brought to the
special attention of the Governing Body as serious and urgent cases. 4

9. For the first 16 years of its membership of the ILO, no complaints were
filed in relation to Zimbabwe's observance of the freedom of association and
collective bargaining Conventions.

The first two complaints were submitted to the Committee on Freedom of
Association in 1996 by the International Confederation of Free Trade Unions
(ICFTU), alleging that the police violently broke up a demonstration of
workers in support of striking doctors and nurses, and in 1997 by the
International Federation of Commercial, Clerical, Professional and Technical
Employees, alleging the mass dismissal of bank workers following a strike.
The Government provided information to the Committee on Freedom of
Association in relation to both of these cases.

10. The following year a complaint was filed by the Zimbabwe Congress of
Trade Unions (ZCTU), alleging violent police interventions in large-scale
national demonstrations, an assault on its Secretary-General, Mr Morgan
Tsvangirai, arson on a regional union office, and a Presidential declaration
that all industrial action was illegal for a six-month period. While the
Government provided comments on the allegations, it considered that it was
inappropriate to instigate independent inquiries or legislative amendments
in accordance with the Committee on Freedom of Association's requests. In
2007, the Committee regretted the Government's "continued and long-standing
failure to cooperate".

11. Convention No. 98 came into force in Zimbabwe on 27 August 1999. The
Committee of Experts considered the country's first report in November 2000.
In a direct request, it addressed concerns involving legislative
discrepancies concerning, in particular, interference in trade union
affairs, compulsory arbitration, collective bargaining and the coverage of
public

12. Another Committee on Freedom of Association complaint brought by the
ZCTU in 2000 concerned the appointment of an investigator to look into the
union's funds and property, which the Committee continued to follow up until
2004, when it regretted that the Government had not reformed the law. Two
complaints were filed by the ICFTU in 2002, both of which were listed as
serious and urgent cases by the Committee. One of those cases concerned
alleged interference by the police in a ZCTU meeting and the threat of
deregistration; the other related to allegations of arrest and detention of
nine trade unionists in the context of a planned mass stay-away, assault by
the police, and riot police having prevented a trade union meeting.

13. In 2002, in its observation on Convention No. 98 the Committee of
Experts regretted that the Government had not accepted an ILO mission as
suggested by the Conference Committee. In 2003, for the first time, Zimbabwe
was mentioned in a special paragraph of the Conference Committee's report as
of special concern. The Government commented that its listing was
unnecessary given the current labour law reform processes, and emphasized
its cooperation with African political leaders to address the problems it
faced. The Government stated that, although it was willing to accept
technical assistance from the ILO, a direct contacts mission would be
political in nature; the view was expressed that those who were trying to
participate in the political process in the country were failing to respect
the fact that African countries were capable of resolving their problems on
their own.

14. A further complaint to the Committee on Freedom of Association was filed
by the ICFTU in 2003 concerning allegations of the arrest of 165 trade union
leaders during a nationwide protest, some of whom were seriously assaulted,
and of 390 trade unionists at a nationwide protest one month later. The
Government of Zimbabwe replied that many of the ZCTU's actions were
political, rather than of a true trade union nature. By 2006, the Government
did not reply to further information provided by the complainants containing
details of alleged violence, despite an urgent appeal to do so. On both
occasions that it examined the case, the Committee on Freedom of Association
brought it to the special attention of the Governing Body.

15. In November 2003, the Committee of Experts noted with satisfaction that
the Government had introduced new legislation that partially resolved some
of its concerns in relation to interference, compulsory arbitration and the
application of the Labour Act to most public servants. However, it regretted
that some problems remained in relation to collective bargaining and freedom
of association rights of prison workers. These same issues were raised by
the Committee of Experts the following year. The Conference Committee
discussed the case of Zimbabwe again in 2004 and in 2005, when it noted
positive legislative developments as well as problems in practice, and the
Government's continued refusal to accept a high-level direct contacts
mission. In 2005, the Committee of Experts encouraged Zimbabwe to accept a

direct contacts mission.

16. In 2004, a complaint was filed with the Committee on Freedom of
Association by the Organization of African Trade Union Unity (OATUU), the
UNI Global Union and the ICFTU in relation to the alleged dismissals and
indefinite suspension of trade union officials. Appeals in this case were
still pending in the national courts in 2007. Another complaint filed by the
ICFTU concerned a number of allegations relating to 2004, including
detentions, dismissals and transfers, and general intimidation and
harassment of trade unionists. Later allegations concerned similar events in
2004-06, as well as investigations of ZCTU financial matters, refusal to
allow foreign trade unionists to enter the country, and police intervention
in trade union meetings, strikes and demonstrations. The final set of
allegations concerned the arrest and assault of 265 union members and
officials during a 13 September 2006 demonstration. While the Government
provided observations throughout the Committee on Freedom of Association's
follow-up to the case, during which time it was listed as a serious and
urgent case on three occasions, the Committee deplored the fact that its
recommendations had not been implemented.

17. This case also concerned the issue of alleged governmental involvement
in an internal conflict within the ZCTU, which was raised before the
Credentials Committee of the International Labour Conference in 2005. The
ICFTU and Concerned Zimbabweans Abroad had alleged that the Workers'
delegates on the Zimbabwe delegation had been unilaterally selected by the
Government in contradiction with the ZCTU's proposal as the most
representative trade union. While the Credentials Committee was not in a
position to verify allegations concerning internal ZCTU conflicts, it noted
that the Government's actions in rejecting the written proposal of the ZCTU
amounted to interference. The Credentials Committee noted "some doubts"
about the Government's impartiality and an indication of governmental
"manoeuvres to manipulate the choice".

18. Convention No. 87 came into force in Zimbabwe on 9 April 2004. The
Committee of Experts examined the country's first report in November 2005,
commenting upon concerns with implementation of the Convention in relation
to civil liberties, arrest and detention of unionists. In addition, the
Committee of Experts noted various matters including the application of the
Act to the prison service and managers, the question of registration,
governmental involvement in union elections and activities and ability to
launch investigations into unions, and the right to strike.

19. In June 2006, Zimbabwe was invited to appear before the Conference
Committee on account of Convention No. 87. The country considered that its
appearance on the case list was politically motivated and continued to
refuse to accept the suggestion by the Conference Committee of a high-level
direct contacts mission. The Conference Committee commented on the use of
the POSA and emphasized that the exercise of trade union rights was
intrinsically linked to the assurance of full guarantees of basic civil
liberties, including the rights to express opinions freely, and to hold
assemblies and public meetings.

20. In 2006, Zimbabwe again provided reports to the Committee of Experts on
both Conventions Nos 98 and 87, which raised similar matters. While the
Government continued to refuse to accept a high-level direct contacts
mission, Zimbabwe had invited the Director of the ILO International Labour
Standards Department to officially visit the country in August 2006. Her
mission report, which commented on a paucity of social dialogue in the
country, was mentioned by both the Committee of Experts and the Conference
Committee.

21. In June 2007, Zimbabwe's observance of Convention No. 87 was again
discussed by the Conference Committee. Despite having a delegation
accredited to the Conference, the Government did not attend the sitting of
the Conference Committee. Zimbabwe was mentioned in a special paragraph. At
the same session, following an objection by the International Trade Union
Confederation (ITUC), the Credentials Committee regretted that the
Government had appointed a person of its own choice as one of the Workers'
delegates on the Zimbabwe delegation and expected that in the future the
Government would nominate the Workers' delegation exclusively in agreement
with the most representative workers' organization.

22. In 2007, the Committee of Experts made observations on both Conventions
Nos 87 and 98, raising similar technical issues as in its previous comments,
and reiterated the importance of the country receiving a high-level direct
contacts mission. A further complaint to the Committee on Freedom of
Association submitted by the ITUC in May 2008 contained updates on previous
allegations and new allegations relating to 2006-08. In 2008, Zimbabwe was
again discussed, despite the absence of its delegation, by the Conference
Committee. In its conclusions, the Committee called for countries to
consider action under article 26 of the ILO Constitution. During the 97th
Session of the Conference in June 2008, complaints under article 26 of the
Constitution were filed by 13 Workers' and 13 Employers' delegates and the
Governing Body appointed this Commission of Inquiry in November 2008.

3. Political developments subsequent to the complaints

23. Between the time that the complaints were submitted to the International
Labour Conference on 13 June 2008 and the date when the Commission of
Inquiry began its work on 18 February 2009, there were significant political
developments in Zimbabwe.

24. In the two weeks following the submission of the two article 26
complaints upon which this Commission of Inquiry was established, Mr Robert
Mugabe was sworn in as President, Head of State and Head of Government
following a run-off election from which Mr Morgan Tsvangirai withdrew,
alleging violence against his supporters.

25. On 15 September 2008, the Global Political Agreement (GPA) was signed by
Mr Robert Mugabe, as President of the Zimbabwe African National Union -
Patriotic Front (ZANU-PF), and Mr Morgan Tsvangirai and Mr Arthur Mutambara,
the Presidents of the two formations of the Movement for Democratic Change
(MDC). 8 Pursuant to Article II of the GPA, the parties agreed "to work
together to create a genuine, viable, permanent, sustainable and nationally
acceptable solution to the Zimbabwe situation". Article XII of the Agreement
reaffirms the principle of freedom of assembly and association.

26. Pursuant to the GPA, Constitutional Amendment No. 19 was passed by the
Parliament of Zimbabwe on 5 February 2009, creating the constitutional
context within which an inclusive government could be established in
accordance with the GPA. Under the GPA, Mr Mugabe remained as President of
Zimbabwe. On 11 February 2009, Mr Tsvangirai was sworn in as Prime Minister
of Zimbabwe and on 13 February 2009, a Council of Ministers was sworn in,
including ministers from the ZANU-PF, the MDC-T and the MDC-M parties. Most
notably in relation to the allegations that the Commission of Inquiry was
called upon to consider, the Council of Ministers included new Ministers of
Labour and Social Services and of Public Services.

8 The two formations of the MDC are known as "MDC-T" and "MDC-M". MDC-T is
led by Mr Tsvangirai, and MDC-M is led by Mr Mutambara.

Part II.

Procedure followed by the Commission

4. First Session of the Commission

I. Solemn declaration made by the members of the Commission

27. The First Session of the Commission was held on 18, 19 and 20 February
2009 in Geneva, during which the Commission decided on the procedure it was
to follow for the rest of its work.

28. At the beginning of this session, each member of the Commission made a
solemn declaration in the presence of Mr Juan Somavia, Director-General of
the International Labour Office. Inviting the members of the Commission to
make the declaration, the Director-General recalled the circumstances in
which the Commission had been established and noted that it was the first
time a Commission had arisen from simultaneous complaints from workers and
employers. The Director-General hoped that the Commission would help the new
Government of Zimbabwe in its rebuilding of the country, ensuring restored
respect for the fundamental ILO principles that underpin a sound democracy.
He stressed that the task entrusted to the Commissioners was to "establish
the facts without fear or favour and in full independence and impartiality".

29. The members of the Commission then each made the following declaration:

I solemnly declare that I will honourably, faithfully, impartially and
conscientiously perform my duties and exercise my powers as a member of the
Commission of Inquiry set up by the Governing Body of the International
Labour Office at its 303rd Session, November 2008, in pursuance of article
26 of the Constitution of the International Labour Organization, to examine
the observance by Zimbabwe of the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), and of the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98).

II. Adoption of the procedure to be followed by the Commission

30. The ILO Constitution does not lay down rules of procedure to be followed
by a Commission of Inquiry appointed under article 26. In determining its
procedure, the Commission recalled certain elements which characterized the
nature of its work. As earlier Commissions of Inquiry had stressed, the
procedure provided for in articles 26-29 and 31-34 of the Constitution was
of a judicial nature. Thus, the rules of procedure had to safeguard the
right of the parties to a fair procedure as recognized in international law.

31. The Commission, while working in the judicial spirit that characterizes
ILO Commissions of Inquiry, at the same time considered it desirable that it
contributed to the process of reconciliation and healing in Zimbabwe on the
basis of international standards on labour relations and human rights.
Bearing these considerations in mind, the Commission adopted the rules of
procedure that it intended to follow. These rules were brought to the
attention of the Government of Zimbabwe and the complainants, and are as
follows:

Rules of procedure: Commission of Inquiry on Zimbabwe

A. General procedure

1. The Government of Zimbabwe and the complainants shall each designate a
representative to act on their behalf in relation to the Commission. Each
representative may designate a substitute or substitutes to act on their
behalf.

2. The representatives shall remain at the disposal of the Commission during
the entire period of its mandate.

3. The proceedings of the Commission, including all information that comes
to its notice, shall be confidential except insofar as the Commission
publishes its conclusions.

4. The Commission shall produce a report, in accordance with article 28 of
the Constitution of the ILO, embodying its findings on all questions of fact
relevant to determining the issue between the parties and containing such
recommendations as it may think proper as to the steps which should be taken
to meet the complaint and the time within which they should be taken.

5. The purpose of the Commission is to examine the information it considers
necessary to ascertain the matters submitted to it for investigation by the
Governing Body of the International Labour Office, and to express its view
thereon. It shall therefore only accept information and statements of
relevance to the complaints concerning Conventions Nos 87 and 98. Any
questions of admissibility shall be determined by the Commission.

6. The members of the Commission, its secretariat and any person or
organization appearing before it, or in contact with it, shall be accorded
the privileges and immunities pursuant to the Convention on the Privileges
and Immunities of the Specialised Agencies, 1947 and its Annex relating to
the ILO.

7. During any meetings that the Commission may hold, it will decide who may
be present. During the Commission's on-the-spot mission to Zimbabwe, or any
other mission that the Commission undertakes, it shall determine its
schedule and meet freely with all the parties involved, to ensure that it
may be fully and objectively informed on all aspects of the case.

B. Procedure for hearings

8. The Commission shall determine its own procedure with full regard to due
process.

9. The representatives designated by the Government of Zimbabwe and the
complainants shall be expected to be present throughout the hearing of
witnesses, and shall be responsible for the general presentation of their
cases.

10. The Commission shall hear the representatives of the parties and all
witnesses in private sittings and the information and evidence presented to
the Commission therein is to be treated as fully confidential by all persons
and organizations whom the Commission permits to be present.

11. The Commission reserves the right to consult the representatives in the
course of, or upon the completion of, the hearings in respect of any matter
on which it considers their special cooperation to be necessary.

12. Each representative may, if s/he so chooses, designate witnesses to
present evidence to the Commission at its formal hearing.

13. The Commission or any member of the Commission may question the
representatives of the parties or the witnesses at any stage in the hearing.

14. The Commission shall require each witness to make a solemn declaration
identical to that provided for in the Rules of the Court of the
International Court of Justice. This declaration reads: "I solemnly declare
upon my honour and conscience that I will speak the truth, the whole truth
and nothing but the truth".

15. All statements by witnesses and questioning of witnesses shall be
subject to control by the Commission.

16. Except with the leave of the Commission, witnesses may not be present
except when giving evidence.

17. Any witness shall be given an opportunity to make a statement before
questions are put to him or her. If a witness reads his or her statement,
the Commission shall receive a copy.

18. With the leave of the Commission, the representatives may be permitted
to put questions to the witnesses, in an order to be determined by the
Commission.

19. The Commission shall not receive statements or materials on matters
outside its terms of reference.

20. The Commission reserves the right to recall witnesses, if necessary.

21. The Commission may authorize representatives to question one another.

22. The Commission reiterates that representatives and witnesses shall enjoy
the privileges and immunities referred to in paragraph (6) above, as well as
full protection against any kind of discrimination, intimidation, harassment
or pressure, on account of their appearance before, or contact with, the
Commission, either during the hearing itself or following it. No obstacles
of any kind shall prevent witnesses from attending the Commission's hearing
or communicating with it.

23. While fully respecting the ILO rules and procedure for the conduct of
the Commission of Inquiry the Commission may, in its judgment, exercise its
good offices for the advancement and the welfare of the people of Zimbabwe
and the promotion and protection of trade union and human rights.

III. Communication of additional information

32. The Commission took note of the recent inauguration of the inclusive
Government in Zimbabwe and extended its wishes for its success and for the
full realization of the GPA between the ZANU-PF and the two MDC formations,
on resolving the challenges facing Zimbabwe, as signed on 15 September 2008.
It expressed the hope that these developments would have a positive impact
on the issues of freedom of association rights that fell within the mandate
of the Commission of Inquiry. The Commission wrote to the President and
Prime Minister of Zimbabwe along these lines and shared its sentiments with
the leadership of the African Union (AU) and the Southern African
Development Community (SADC).

33. The Commission invited the Government of Zimbabwe and the complainants
to communicate to it any additional information concerning the issues raised
in the complaints regarding the situation of freedom of association in the
country. It decided that any new material received from either party would
be transmitted to the other party for possible comment.

34. The Commission further gave the opportunity of presenting any
communication they might wish to make on the matters raised in the complaint
to those workers' and employers' organisations having consultative status
with the ILO and which are universal or regional in scope: the ITUC, the
World Federation of Trade Unions (WFTU), the Organization of African Trade
Union Unity (OATUU), the International Organisation of Employers (IOE) and
the Pan-African Employers' Federation (PAEF).

35. Further, the Commission informed various international organizations
within the United Nations system of the Governing Body's decision to
constitute a Commission of Inquiry to examine the complaints concerning the
observance by Zimbabwe of the freedom of association Conventions and, with a
view to the duty of coordination and cooperation with the United Nations
system, it offered those organizations the opportunity to present any

information they might consider relevant. The organizations thus addressed
were: Food and Agriculture Organization of the United Nations (FAO), Office
of the UN High Commissioner for Human Rights (OHCHR), United Nations High
Commissioner for Refugees (UNHCR), World Food Programme (WFP), World Health
Organization (WHO), United Nations Educational, Scientific and Cultural
Organization (UNESCO), United Nations Economic and Social Council (ECOSOC)
and United Nations Department of Political Affairs (UNDPA).

36. Pursuant to article 27 of the ILO Constitution, the Commission also
wrote to the governments of the following countries neighbouring Zimbabwe
seeking any information pertinent to the complaints relating to freedom of
association and collective bargaining that they might wish to provide:
Botswana, Mozambique, Namibia, South Africa and Zambia. The Commission also
wrote to the member States who were members or deputy members of the
Governing Body of the ILO, seeking any information relating to freedom of
association and collective bargaining that they might consider pertinent to
the complaints: Argentina, Australia, Austria, Bangladesh, Barbados,
Belgium, Benin, Brazil, Bulgaria, Burundi, Cambodia, Canada, China, Congo,
Cuba, Czech Republic, Egypt, El Salvador, France, Germany, Ghana, Guinea,
Hungary, India, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya,
Republic of Korea, Lebanon, Lithuania, Mexico, Mozambique, Nigeria,
Pakistan, Panama, Peru, Poland, Portugal, Qatar, Russian Federation,
Singapore, Spain, South Africa, Sudan, Sweden, Thailand, Tunisia, United
Republic of Tanzania, United Kingdom, United States, Uruguay, Viet Nam,
Bolivarian Republic of Venezuela and Zambia.

37. Additionally, the Commission addressed a communication to the Law
Society of Zimbabwe, providing it with the opportunity to submit any
information that it considered pertinent to the complaints.

38. The Commission notified the governments and organizations thus addressed
that any information provided by them would be transmitted to the Government
of Zimbabwe and to the complainants for possible comment. It also indicated
that it was competent only to examine Zimbabwe's fulfilment of the
obligations it undertook upon ratifying Conventions Nos 87 and 98 and that
therefore questions which did not relate to freedom of association

affairs would be outside its competence.

39. The Commission informed the Government of Zimbabwe and the complainants
that it intended to perform its task with complete objectivity, impartiality
and independence. It made it clear that it did not consider its role to be
confined to an examination of the information furnished by the parties
themselves or in support of their contentions and that it would take all
appropriate measures to obtain information that was as full and objective as
possible on the matters at stake.

IV. Measures adopted with a view to the Second Session and subsequent work
of the Commission

40. The Commission took some preliminary decisions concerning its subsequent
work, mindful of the fact that the prevailing political situation in
Zimbabwe might require changes to this, in particular as regards possible
dates of future sessions.

41. The Commission considered that its Second Session would include both
missions to the region and meetings in Geneva. It planned a mission to
Zimbabwe, so as to be able to obtain the fullest understanding of the
reality of the situation concerning the observance of the freedom of
association Conventions in the country, in the context of national efforts
to take forward the process of dialogue and reconciliation. In view of the
recent political developments that had occurred in Zimbabwe, the Commission
decided that prior to confirmation of the details of its Second Session, it
would undertake a preliminary visit of goodwill and initial contacts to
Zimbabwe, accompanied by senior ILO officials.

42. The Commission authorized its Chairperson to deal with any questions of
procedure that might arise between sessions, in consultation with the other
members if he considered it necessary. It considered that the finalization
of the dates of its subsequent meetings, missions and hearings would be
determined following consultations with the Government and the complainants.

V. Goodwill mission to Zimbabwe

43. Following an exchange of communications with the Government to determine
a convenient date, Mr Kari Tapiola, Executive Director for Fundamental
Principles and Rights at Work, and Ms Cleopatra Doumbia-Henry, Director of
the International Labour Standards Department, undertook a preliminary
mission to the country on 19-22 May 2009.

44. The Commission of Inquiry undertook a goodwill mission to Zimbabwe on
20-22 May 2009. During this time, the Commission of Inquiry met the Minister
and Deputy Minister of Labour and Social Services; the Minister and Deputy
Minister of Public Service; the Minister of Foreign Affairs; the
Co-Ministers of Home Affairs; the Members of the Organ for National Healing,
Reconciliation and Integration; the President and Secretary General of the
ZCTU; and the Vice-Presidents and Executive Director of the Employers'
Confederation of Zimbabwe.

45. The Commission explained that it had come to Zimbabwe on a goodwill
mission to familiarize itself with the situation in the country following
the establishment of the inclusive Government. The Commission, while working
in the judicial spirit that characterizes ILO Commissions of Inquiry, at the
same time was desirous of contributing to the process of reconciliation and
healing in Zimbabwe on the basis of African and international standards on
labour relations and human rights. The Commission asked the people whom it
met to specify any areas in which the Commission or the ILO could provide
support.

46. The Commission received assurances of cooperation and support from those
whom it met during the goodwill mission, and the dates of 12-25 August were
agreed for the Commission's future fact-finding mission to Zimbabwe.

47. The ILO agreed to provide technical assistance to the Government to
assist in the achievement of certain of the targets set in its "100-day
 plan" covering the period 29 April-6 August 2009, entitled "Getting
Zimbabwe working again". Accordingly, the ILO provided technical assistance
to Zimbabwe to support the first steps in: (1) the revision of the country's
social dialogue institution; (2) the harmonization of the public service and
labour laws so as to ensure freedom of association rights to civil servants;
and (3) through discussion of a draft employment policy, ratification of ILO
Convention No. 122 on employment policy. In July 2009, tripartite workshops
were held on each of these topics, a high-level tripartite delegation
carried out a study visit to the social dialogue institution in South
Africa, and discussion papers were prepared on best practices for social
dialogue institutions and on freedom of association rights for public
servants.

5. Communications received by the Commission after its First Session

48. After the Commission had given the Government of Zimbabwe, the
complainants, Zimbabwean workers' and employers' organizations, neighbouring
countries, member States who were members or deputy members of the ILO
Governing Body, organizations from within the UN system, and various
international workers' and employers' organizations the opportunity of
submitting communications to it, the Commission received the following
information, which will be analysed in greater detail in Part IV of the
report. In accordance with the procedure established by the Commission at
its First Session, copies of all information received were transmitted to
both the Government of Zimbabwe and the complainants for their information.

I. Communications from the complainants

49. The Commission received a communication from the ITUC dated 22 April
2009 conveying information concerning intimidation of potential witnesses to
the Commission of Inquiry by individuals purporting to be Central
Intelligence Organization (CIO) operatives.

50. A communication from the secretary of the Workers' group, on behalf of
the complainants and dated 22 June 2009, designated the General Secretary of
the ITUC, Mr Guy Ryder, as the representative of the complainants in
relation to all matters before the Commission. The following persons were
authorized to act on behalf of the General Secretary for the purposes of the
Commission: Mr Stephen Benedict, Director of the ITUC Human and Trade Union
Rights Department, Ms Raquel Gonzales, Director, ITUC Geneva Office, and Ms
June Sorenson, ITUC Human and Trade Union Rights Department.

51. The General Secretary of the ITUC submitted a communication dated 22
June 2009 including a report containing additional information on alleged
violations of freedom of association rights in Zimbabwe and a number of
attachments. A further communication from the General Secretary dated 30
July 2009 commented on the further communication from the Government of
Zimbabwe and provided additional updated information to the Commission.

52. In a communication dated 28 July 2009, the Director of the ITUC Human
and Trade Union Rights Department submitted a list of individuals whom the
complainants wished the Commission to meet during its visit to Zimbabwe.

53. In a communication dated 7 August 2009, the secretary of the Employers'
group indicated that the Executive Committee of the Employers' Confederation
of Zimbabwe (EMCOZ) would arrange for the Commission to meet certain
individuals during its mission to Zimbabwe.

II. Communications from the Government

54. In relation to the allegation of intimidation of potential witnesses,
the Commission received, through the ILO Subregional Office, a copy of a
communication dated 22 April 2009 from the Minister of Labour and Social
Affairs to the Minister of State for National Security, respectfully
requesting that the issue be looked into with a view to taking remedial
measures so as to facilitate an environment where workers' rights were fully
observed and respected.

55. In a communication dated 29 June 2009, the Government of Zimbabwe
provided further information to the Commission of Inquiry and designated Mr
Langton Ngorima, the Acting Chief Labour Officer of the Ministry of Labour
and Social Services, as the government representative on matters relating to
the Commission of Inquiry.

III. Communications from other member States and organizations

56. The Commission had offered the opportunity to present information on the
matters raised in the complaint to a number of member States neighbouring
Zimbabwe; members and deputy members of the Governing Body; international
and regional organizations with consultative status before the ILO;
organizations from within the United Nations system; the SADC; and the
African Union. In a communication dated 16 April 2009, the Commission
received certain information from the United Nations High Commissioner for
Human Rights. The other organizations and member States did not provide
substantive information to the Commission.

6. Second Session of the Commission

57. The Second Session of the Commission took place from 9 to 28 August and
5 to 6 October 2009. The first part of the session involved a mission to the
region to meet with various government officials, representatives of the
social partners and other stakeholders, and individuals proposed by the
social partners in Zimbabwe. The second part of the session involved
meetings in Geneva with representatives of the complainants and the
Government.

I. The Commission's visit to the region

58. The Commission carried out its mission to the region from 9 to 28 August
2009. During its time in Pretoria, the Commission met representatives of the
SADC workers' and employers' groups. A planned meeting with the Minister of
Labour of South Africa, the then chairperson of the SADC, could not take
place due to the absence of the Minister.

59. From 12 to 26 August, the Commission visited Zimbabwe. The Commission
had meetings in Harare, Bulawayo, Gweru and Mutare. Through the cooperative
attitude of the Government of Zimbabwe, the Commission was able to meet
almost all officials with whom it had requested meetings. The exceptions
were the President of Zimbabwe, the Minister of State for National Security,
the Director of the CIO, and the Commissioner of Police. The Commission met
the trade union and employers' organization officials and members listed by
the complainants in their communications dated 28 July and 7 August 2009.
The Commission also had meetings with a number of other stakeholders in
Zimbabwe and resident members of the international community. At the end of
its visit to Zimbabwe, the ILO hosted a cocktail party in Harare, which was
widely attended by government officials, representatives of trade unions,
employers' organizations and other civil society organizations, and members
of the international donor community.

60. The Commission met representatives of the following workers' and
employers' organizations on behalf of the complainants: the ZCTU and the two
factions of the Zimbabwe Federation of Trade Unions (ZFTU), and a number of
primary-level organizations affiliated to those unions; the Apex Council,
the body composed of associations of employees from the public service, in
the absence of legally recognized public service trade unions under
Zimbabwean law; and EMCOZ and its members, including the Chamber of Mines,
the Zimbabwe National Chamber of Commerce and the Confederation of Zimbabwe
Industries.

61. In total, the Commission met over 100 individuals proposed by the social
partners in meetings held in Bulawayo, Gweru, Harare and Mutare. These
individuals were officials, members and former members of Zimbabwean workers'
and employers' organizations, who relayed their personal experiences to the
Commission of Inquiry after having taken an oath to tell the truth,

the whole truth and nothing but the truth.

62. The Commission met the following government officials during its visit:
the Prime Minister; the Minister and Deputy Minister of Labour and Social
Services; the Minister and Deputy Minister of Public Service; the Minister
of Foreign Affairs; the Minister of Home Affairs; the Ministers on the Organ
for National Healing, Reconciliation and Integration; the Minister of
Education; the Minister of Constitutional and Parliamentary Affairs; the
Attorney-General and Deputy Attorney-General; the Minister of Justice and
Legal Affairs; the Minister of Lands and Rural Resettlement; the Minister of
Media, Information and Publicity; the Chairperson and Members of the Public
Service Commission; the Acting Commissioner and Deputy Commissioner of
Prisons; the Executive Chairperson and Director of the Health Service Board;
and the Ombudsperson.

63. The Commission also met with the Senior President and judge presidents
of the Labour Court; the Director-General of the Judicial College on behalf
of the Judge President of the High Court; and the Chief Magistrate and
magistrates of the Magistrates' Court.

64. The Commission had meetings with a number of civil society
organizations: the National Association of Non-Governmental Organizations,
the Law Society, Zimbabwe Lawyers for Human Rights, the Catholic Commission
for Justice and Peace and the Zimbabwe Human Rights Association.

65. Finally, the Commission convened meetings with African ambassadors,
representatives of the international donor community resident in Zimbabwe,
and the United Nations Country Team.

II. Meetings with the complainants and the Government in Geneva

66. The Commission met on 5 and 6 October 2009 in Geneva to hold internal
discussions and meet with representatives of the complainants and the
Government. On behalf of the complainants from the Workers' group, the
Commission met with Mr Guy Ryder via a video conference. On behalf of the
complainants from the Employers' group, the Commission met with Mr Edward
Potter. On behalf of the Government, the Commission met with His Excellency,
Mr Chitsaka Chipaziwa, Ambassador of the Republic of Zimbabwe to the United
Nations.

67. In each of these meetings, the Commission was able to provide a briefing
on its work to date, and to indicate the future steps that it would be
taking in terms of the preparation of its report.

In particular, it informed the representatives with whom it met about its
on-the-spot mission to Zimbabwe in August, and sought further information,
to the extent possible, on developments in the country since then.

III. Communications received by the Commission following its mission

68. Through the ILO's Subregional Office in Harare, the Commission of
Inquiry was informed that on 4 September 2009 the Tripartite Negotiating
Forum signed the Kadoma Declaration concerning social dialogue.

69. The Commission received communications from the complainants dated 14
September and 8 October 2009 alleging the dismissal of 23 workers from
ZIMASCO (Pvt) Ltd Kwekwe for participating in a strike; the shooting of
trade unionists in the context of a strike at the Shabanie Mine in
Zvishavane; the banning of, and arrests during, demonstrations in September
2009; and police and army involvement in relation to the cases of farm
workers evicted from the farms on which they had formerly worked.

7. Third Session of the Commission

I. Communications received by the Commission after the Second Session

70. The Commission of Inquiry received communications from the ITUC and the
OATUU dated 9 and 13 November 2009 concerning the alleged arrest and
detention of the President and four officials of the ZCTU. The Commission
also received a communication dated 10 November 2009 from the International
Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied
Workers' Associations alleging that individuals believed to be CIO officials
had threatened the family of the President of the General Agricultural and
Plantation Workers' Union of Zimbabwe (GAPWUZ) in her absence. The
Commission of Inquiry was informed that the International Labour Office had
written to the President and Prime Minister of Zimbabwe in regard to these
allegations.

71. The Commission was advised of a communication from the Government dated
6 November 2009 and received by the Director of the International Labour
Standards Department on 9 December 2009, in which the Government indicated
its view that the work of the Commission should be premised only on the
specific allegations that led to its establishment, as well as the findings
obtained during its visits to Zimbabwe. The Government stated that it found
it inappropriate for the ITUC to have forwarded fresh allegations implying
that the Government was taking no action and found it unsuitable for the
Commission to entertain unverified allegations. The Commission considered it
its duty to take account of all relevant information up to the adoption of
its report.

II. Adoption of the report

72. The Third Session of the Commission was held in Geneva from 12 to 18
December 2009 when it considered and adopted its report.

Part III.

Historical and legal context

73. For several years before the presentation of the complaint under article
26 of the ILO Constitution, questions concerning freedom of association and
collective bargaining rights in Zimbabwe had been under examination by the
Committee on Freedom of Association. In addition, the Committee of Experts
had examined the Government's reports under article 22 of the ILO
Constitution on the application of Conventions Nos 87 and 98 and the
Conference Committee on the Application of Standards had discussed the
application of these standards in the country. The Governing Body decided to
refer the examination of the case as a whole to the present Commission of
Inquiry.

74. Accordingly, the following chapters take into account all the
information presented previously to the Committee on Freedom of Association
and included in the reports submitted by the Government on the application
of Conventions Nos 87 and 98 pursuant to article 22 of the ILO Constitution.

75. For that reason, before starting the analysis of the case itself, the
Commission briefly describes the historical and socio-economic context of
freedom of association and collective bargaining in Zimbabwe, surveys the
relevant legislation in Zimbabwe, and details the matters that have already
been reviewed by the ILO supervisory bodies on the basis of the information
that was made available to them.

8. Trade unionism in Zimbabwe: Historical and socio-economic context

I. Colonization and white minority government: 1880s-1979

76. In the 1880s, British settlement of the land now comprising Zimbabwe,
within which the Shona and Ndebele peoples lived, began under the British
South Africa Company. Despite insurrections by the Shona and Ndebele,
British settlement increased and the country became formally known as
Southern Rhodesia. The country was ruled according to a clear division along
racial lines at the expense of the African majority.

77. The British South Africa Company introduced various measures "to induce
reluctant African workers to enter wage employment", where their employment
contracts were individually negotiated under master and servant legislation
which made the bringing of grievances very difficult. 10 The pillar of the
early colonial economy was the mines on which Africans were sent to work
despite a reluctance due to their agricultural activities which supplied all
their needs. To meet the increasing labour demands most workers at this time
were temporary migrant labourers from neighbouring countries, brought into
the country. A 1901 ordinance regularized the legal status of black workers,
but made no provision for collective consultation or bargaining. 11 At this
time, trade unions of black workers were illegal.

78. White workers on the mines and the railways had organized themselves
into trade unions from 1916. 12 A strike by white mineworkers in 1919
resulted in their demands being met and, indirectly, led to the formation of
the Rhodesia Mine Owners' Association in 1920. In 1923, Southern Rhodesia
became a self-governing British colony as a result of a vote by its British
settlers. At that time, there was a "vociferous white labour movement" in
the country, although it was not entirely officially recognized.

79. In comparison, there were no formal trade unions among the black
workers. The Industrial Conciliation Act 1934 excluded African workers from
collective bargaining procedures and from training for skilled jobs, by
excluding "natives" from the definition of employees. This statute created
industrial boards for each sector, within which trade unions and employers'
organizations negotiated wages and working conditions. The Land Act, 1930
excluded Africans from ownership of the best farming land and the Labour
Act, 1934 prohibited Africans from entering skilled trades and professions.
Consequently, black workers largely worked for low wages on white-owned
mines and farms and as domestic workers or low-skilled workers in factories
or the railways.

80. In the 1920s and 1930s, social, religious and recreational organizations
began to be developed by black miners which, although not primarily
industrial in nature, became involved in the strikes and industrial unrest
in the mines in the absence of registered trade union organizations. These
have been described as "the logical precursors of a trade union movement".
Industrial unrest escalated in the years following the First World War, with
strikes taking place in various mines. A five-day strike in 1927 at the
Shamva gold mine involved 3,500 black workers; it collapsed after police and
army intervention and its leaders were arrested, tried and deported to the
neighbouring countries from which they had originally come.

81. At the same time, a new trade union movement among black workers began
to develop in Bulawayo and Salisbury (now Harare). In the early 1920s, urban
tribal and regional mutual aid societies existed. The desire for a "secular
and pan-tribal organization" led to the development of the Industrial and
Commercial Workers' Union of Rhodesia in 1927-28, the contemporary "voice of
radical discontent". 18 The division between white and black workers
remained and the union failed to establish widespread support from
mineworkers and workers on white-owned farms, despite this being the major
employment sector in the country. The union largely fell apart in the
mid-1930s.

82. A nationwide strike by 8,000 black railway workers in 1945 led to an
inquiry into "matters affecting Africans employed in industry". The
resulting Native Labour Boards Act, 1947 laid down conditions of employment
for African workers in all industries except agriculture and domestic
service, and African workers could still not negotiate directly with their
employers. The African Workers' Trade Union was formed following the strike
in 1945, later changing its name to the Federation of Bulawayo African
Workers' Union; the Industrial and Commercial Workers' Union was revived in
1946; and the British African National Voice Association was founded in
1947.

83. In 1948, a general strike took place throughout the country, covering
many sectors and lasting about eight days. Native labour boards were
established as a result. The Subversive Activities Act, 1950 was intended to
control trade unionism. Nevertheless, there were numerous strikes during the
1950s, often broken up by force. In 1954, all 9,000 miners at the Wankie
Collieries, supported by domestic workers working for the 375 white
labourers at the colliery, went on strike and, in 1956, a strike by 22,000
workers organized by the Railway African Workers' Union went ahead despite a
previous declaration of a state of emergency. Black workers' experiences
with the State during this time "reinforced their views about the brutality
of the colonial State" and unions and workers started to become linked with
nationalist politics. Additionally, unions for African workers started to
form national federations such as the African National Congress (ANC) in
1957, which became involved in both trade union and nationalist issues.

84. The Industrial Conciliation Act, 1959 covered all workers except those
in agriculture and domestic service - who were still subject to the Master
and Servants Act - and public service and railway employees, who were
covered by specific legislation. It allowed for a system of industrial
councils, through which employers and employees would collectively bargain
conditions of service in a particular industry, and recognized for the first
time African trade unions. Nevertheless, white workers had more voting power
than black workers, registration was difficult, and unions were prohibited
from becoming involved in political activities. By 1964, 26 African trade
unions were registered.

85. In 1959, a state of emergency was declared, numerous trade union members
were arrested, the ANC and its successor were banned, and the army and
police entered the townships. Legislation to control unrest and dissension
included criminalizing strikes in some circumstances. In 1962, the Zimbabwe
African People's Union (ZAPU) was established, and in 1963 a split led to
the formation of the Zimbabwe African National Union (ZANU). During this
period, divisions in the trade union movement mirrored broader divisions in
the nationalist movement between trade union and radical nationalist
perspectives.

86. In the context of increased calls for independence and universal
suffrage, the white-minority government in Southern Rhodesia made a
Unilateral Declaration of Independence (UDI) from the United Kingdom on 11
November 1965. Sanctions were imposed by the international community, which
did not recognize Rhodesia as an independent country. Within the country, a
guerrilla war of independence intensified over the years, with armies from
both the ZAPU and ZANU political parties involved. Many trade unionists, as
members of nationalist political parties, were arrested or went into exile
during this period, and public order and safety legislation was used to
limit and control industrial action.

87. At this time, the government policy on labour aimed to maintain
"industrial peace" and ensure an adequate labour supply. For example, an
amendment to the Industrial Conciliation Act in 1971 removed the right to
strike "when the President is satisfied that a strike ... would prejudice
the public interest". The Government intervened in strikes by both white and
black workers. The Law and Order Maintenance Act, 1960 and the Emergency
Powers Act, 1960 were applied against striking workers who, if found guilty,
could receive a penal sentence and be prevented from holding union office
for seven years.

88. An ad hoc working group of experts of the Commission of Human Rights
reported to the ECOSOC in 1973 on allegations of infringements of trade
union rights in Southern Rhodesia. The working group concluded that "the
vast majority of African workers cannot belong to any trade union"; that
deregistration of trade unions had increased; and that the right to strike
was "virtually non-existent in view of the political and legal constraints".
The ILO had provided expert evidence to this working group and subsequently
produced its own report in 1978 which also canvassed freedom of association.

89. Although unions were prohibited from restricting membership on the basis
of race, they remained racially distinct due to their divide along skills
lines: "the concept of a single worker movement is inapplicable in the
Rhodesian context, and any study of industrial relations has to recognize
that this movement is fragmented, its objectives multi-directional and its
tactics variable". Policies continued to maintain the preferential position
of white workers compared to black workers and it was difficult for black
unions to become established. The fight for trade union rights "was
transformed into the fight for majority political rights, a fight against
colonialism and the UDI".

II. Independence: Zimbabwe since 1980

90. A constitutional agreement was signed on 21 December 1979 (the Lancaster
House Agreement), by which the war of independence was ended and Zimbabwe
became an independent country. The Constitution of the new country in 1979
guaranteed freedom of association and the right to form and belong to trade
unions. Full majority elections held in 1980 were won by the ZANU party.
Robert Mugabe, who became Prime Minister and, in 1987 President of Zimbabwe,
emphasized the need for reconciliation in the country. The guerrilla war
that developed between the ZANU and ZAPU armies ended by their merger in
1988 to create the ZANU-PF, which dominated Zimbabwean politics in the
following years.

91. Land was a burning issue in the colonial period. Under the Lancaster
House Agreement, land could only be acquired if the owners wished to sell,
and so there was limited land for resettlement. Other problems arose that
limited the pace at which the Government was able to acquire land for
resettlement.

92. White employers - in comparison compared with African entrepreneurs -
were well organized at independence. Trade or employers' associations
existed in "the broad sectors of agriculture (Commercial Farmers' Union,
Agricultural Labour Bureau), industrial (Confederation of Zimbabwe
Industries), mining (Chamber of Mines), commerce (Zimbabwe National Chamber
of Commerce and National Commercial Employers' Association of Zimbabwe), and
building (Construction Industry Federation of Zimbabwe). In addition,
industry associations existed within these sectors (e.g., Engineering
Employers' Association of Zimbabwe)". After independence, the Confederation
of Rhodesian Employers, which had hitherto played a minor role, became the
Employers' Confederation of Zimbabwe. At this time, "a degree of suspicion,
if not conflict, characterized relations between the major employer groups
and the Government".

93. In the newly independent Zimbabwe, health and education were extended to
the whole community and trade unions, which were no longer banned from
"associating with nationalist parties", enjoyed freedom of association and
expression for the first time. Black workers on white-owned farms were no
longer subject to the master and servant legislation and farm workers became
represented by, notably, the General Agricultural and Plantation Workers'
Union of Zimbabwe (GAPWUZ). Nevertheless, farm workers largely remained
reliant on the social protection and patronage of farm owners.

94. A national trade union centre, called the Zimbabwe Congress of Trade
Unions (ZCTU), was created in 1981, with the support and "deep interest" of
the Government. The ZCTU was a confederation of the six labour federations
that existed in Zimbabwe at the time: the African Trade Union Congress, the
National African Trade Union Congress, the Trade Union Congress of Zimbabwe,
the United Trade Unions of Zimbabwe, the Zimbabwe Federation of Labour and
the Zimbabwe Trade Union Congress. Most white trade unions were dissolved or
joined African trade unions by the mid-1980s.

95. Initially, the ZCTU was closely aligned to the Government and the
ZANU-PF movement, with its founding secretary being Mr Alfred Mugabe, the
Prime Minister's brother. Nevertheless, up to 200 strikes were organized
during the first two years of independence. The Minimum Wages Act, 1980
aimed to tackle discontent with wages by setting out minimum wages in the
different sectors, partly in recognition of the fact that "trade unions were
not yet strong enough to engage in serious collective bargaining". Other
labour legislation enacted in 1980 and 1981, and then incorporated into the
Labour Relations Act, 1985, equally included governmental involvement in
labour relations. For example, the Employment (Conditions of Service)
Regulations, 1981 required prior ministerial approval for retrenchments. The
granting of such powers to the Minister of Labour restricted the "employers'
hitherto unlimited powers to hire and fire". 45 Black workers were now
considered to be "employees" like their white colleagues.

96. The Labour Relations Act, 1985 also created a number of labour
institutions, including workers committees, works committees and trade
unions at the enterprise or industry level, and national tripartite
employment councils, employment boards, the wages and salaries advisory
board, the retrenchment committee, the labour relations board and the labour
relations tribunal. During this time, there was a trend towards the merging
of smaller trade unions into larger ones.

97. From the mid-1980s, the close link between the Government and the ZCTU
came under pressure as the country experienced an economic downturn and the
union challenged the socio-economic policies of the Government. The ZCTU
supported a protest by students in 1989, during which Mr Morgan Tsvangirai,
its Secretary General since 1988, was arrested.

98. In 1991, with the introduction of the Economic Structural Adjustment
Programme (ESAP), and the deregulatory Labour Relations Amendment Act, 1992,
strains in the relationship between the Government and the ZCTU became more
marked. The Government began to use the Law and Order Maintenance Act in
relation to protests against labour law reforms in 1992.

99. Industrial unrest increased and took the form of strikes in a number of
sectors. In 1994, there were strikes in the post and telecommunications,
health, banking, construction and insurance sectors. In 1995, the ZCTU
launched a publication arguing against the Government's structural reform
programme, which "led to government charges of union involvement in partisan
politics". In 1996, a large public service strike was led by junior doctors,
nurses and teachers. Strike leaders were arrested and large numbers of
workers dismissed.

100. There were further strikes in 1997 in the public and private sectors.
Farm workers staged wildcat strikes, protesting against a deadlock in the
annual collective bargaining round between their union, GAPWUZ, and the
employers' association, the Agricultural Labour Bureau; the result of the
strike was a larger pay increase than ever before. A one-day general strike
called by the ZCTU received support from both workers and employers. At this
time, the National Economic Consultative Forum was established, although the
ZCTU chose not to participate. In 1998, further industrial action, including
a general strike, ended with police and army intervention.

101. In 1999, the labour movement joined with opposition groups to form a
political opposition: the Movement for Democratic Change (MDC). The
leadership of the MDC drew strongly on trade unionists from the ZCTU. In
2000, a programme of state-sanctioned land redistribution of white-owned
commercial farms began, with the aim of transferring the ownership of prime
agricultural land from a small number of white farmers to indigenous
Zimbabweans. In 2001, a state-supported referendum on a new constitution,
limiting future presidential mandates to a maximum of two consecutive terms
of five years and with no retrospective effect, was defeated.

102. ZANU-PF and the MDC contested parliamentary elections in 2005 and 2008,
and presidential elections in 2002 and 2008. During the 2008 presidential
elections, and particularly in relation to the run-off elections in June
2008, there was significant violence involving supporters of the two main
political parties and police. Soon after the elections, negotiations between
the major political parties began, mediated by the Southern African
Development Community (SADC).

103. A Global Political Agreement (GPA) on "resolving the challenges facing
Zimbabwe" was signed on 15 September 2008 by the three main political
parties - ZANU-PF and the two MDC formations (MDC-T and MDC-M) - and
witnessed by Mr Thabo Mbeki, the then President of South Africa, as the SADC
facilitator. The GPA includes provisions, among others, on the restoration
of economic stability and growth, sanctions and external interference, the
land question, constitutional reform, promotion of equality, national
healing, cohesion and unity. It reiterated guarantees to political freedom,
the rule of law, freedom of assembly, association and expression, and
respect for national institutions, and affirmed the apolitical nature of
state organs and institutions, the role of traditional leaders and youth,
and the principle of equality in provision of humanitarian and food
assistance. By the Agreement, the parties agreed to promote tolerance,
respect, non-violence and dialogue as a means of resolving political
differences.

104. Pursuant to the GPA, President Robert Gabriel Mugabe, from ZANU-PF,
remained as President of Zimbabwe. Mr Morgan Tsvangirai from MDC-T became
Prime Minister and Mr Arthur Mutambara from MDC-M became Deputy Prime
Minister. Ministerial roles were divided among the parties, as agreed by the
"principals" of the parties in the months following the signature of the
GPA.

105. Since February 2009, the GPA has been implemented through what has
variously been called a "power-sharing government", a "government of
national unity" and an "inclusive Government". Despite sporadic
disagreements between the coalition parties, the inclusive Government has
continued since then. The initial stages of its programme were approved by
the Cabinet on 28 April 2009 in a Government of Zimbabwe "100-day plan" for
the period 29 April to 6 August 2009 entitled "Getting Zimbabwe working
again" setting out key targets for ministries and the newly established
Organ for National Healing, Reconciliation and Integration.

III. Current socio-economic context: Zimbabwe in 2009

106. Zimbabwe is a multi-party republic with lower and upper houses of
Parliament. Its population is estimated at 12-13 million. The people of
Zimbabwe are predominantly black African, with 80-84 percent of the
population being Shona and 10-15 percent Ndebele; less than 1 per cent of
the population are white Zimbabweans. The majority of Zimbabweans live in
rural or provincial areas. The UNDP estimated that there were
570,000-1,000,000 internally displaced persons in Zimbabwe by the end of
2008, as well as a significant diaspora.

107. Zimbabwe was considered to have a "medium human development" ranking on
the Human Development Index, placed 151st out of 177 countries in 2007. 57
Zimbabwe enjoys high literacy levels although the World Bank estimated that
the net enrolment rate in primary schools fell significantly in 2008.

108. Zimbabwe's economy is based principally on mining, agriculture and
tourism, all of which are currently suffering from a severe recession.
During 2008, there were large falls in manufacturing and mineral exports,
tourism and tobacco production. 58 Agricultural yields have dropped in
recent years. At the same time, sanctions were imposed by some members of
the international community and some donors have cut or suspended aid
operations to Zimbabwe, alleging human rights abuses. 59 Average inflation
for 2008 was estimated to have been 15 billion per cent, based on a
government figure of 231 million per cent in July, when its official
estimates were halted.

109. The International Federation of Red Cross and Red Crescent Societies
estimated that almost 9 million Zimbabweans, amounting to 75 percent of the
population, required food aid during February 2009. 62 Despite a great
improvement in the harvest in 2009, the prevailing socioeconomic conditions
in the country meant that food insecurity was still critical, and in August
2009 it was estimated that 2.8 million people needed assistance until the
next harvest in 2010. Forty-seven percent of the population is estimated to
be undernourished. Unemployment was reported to be at 94 percent at the end
of 2008. 64 Much of the population appears to work in the informal economy
and, most particularly, in cross-border trading.

110. Life expectancy in Zimbabwe has fallen from an average of 55.6 years
for the years 1970-75, to an average of 40 years for the years 2000-05. 65
There are indications that the 2008 male life expectancy in Zimbabwe was 37
years and female life expectancy was 34 years. The latest data indicate an
adult HIV prevalence of 18 per cent. 67 A cholera epidemic struck in August
2008 and, as of 31 July 2009, 4,288 people had died and 98,592 people had
been infected. All ten of the country's provinces were affected.

9. National legislation in relation to freedom of association

I. Introduction

111. Zimbabwe became a member of the UN and the ILO in 1980 and has ratified
various international conventions, including the International Covenants on
Civil and Political Rights and on Economic, Social and Cultural Rights. In
the trade union rights context, it ratified, in 1998, the Right to Organise
and Collective Bargaining Convention, 1949 (No. 98), and the Workers'
Representatives Convention, 1971 (No. 135), and in 2003, the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No.
87). It has ratified neither the Labour Relations (Public Service)
Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981
(No. 154).

A. Legal system and governance

112. The legal system of Zimbabwe is predominately a mixture of Roman-Dutch
law and English common law. The term "law" is defined to refer to the
provisions of the Constitution, an Act of Parliament, a statutory instrument
and any unwritten law in force in Zimbabwe, including legal precedents under
the common law and customary law. According to article 113(1) of the
Constitution, a statutory instrument comprises any proclamation, rule,
regulation, by-law, order, notice or other instrument having the force of
law made by the President, a vice-president, a minister or any other person
or authority under the Constitution or any Act of Parliament.

113. The current Constitution of Zimbabwe was drawn up as part of the
Lancaster House Agreement (1979) primarily to transfer power from Britain as
the colonial authority to an independent Zimbabwe. Between 1981 and 2007 it
was amended 18 times. The last amendment, 69 laying down a framework for a
new government, occurred following an Agreement between the ZANU-PF and the
two MDC formations on resolving the challenges facing Zimbabwe, signed on 15
September 2008, 70 known as the GPA.

114. Under the latest constitutional provisions, the executive authority of
the inclusive Government is shared between the President, the Prime Minister
and the Cabinet. The legislative authority of Zimbabwe is vested in the
legislature which consists of, by virtue of article 32 of the Constitution,
the President and Parliament. The bicameral Parliament consists of the
Senate and the House of Assembly (article 33). Parliament is empowered to
make laws for the peace, order and good government of Zimbabwe (article 50).

B. The judicial system

115. The judicial authority of Zimbabwe is vested in the Supreme Court, the
High Court and other courts subordinate to the Supreme and High Courts as
may be established by or under an Act of Parliament (article 79(1) of the
Constitution). The Supreme Court is a superior court of record and the final
court of appeal (article 80(1)). The judges of the Supreme and High Courts
are appointed by the President after consultation with the Judicial Service
Commission (article 84(1)). In the exercise of his/her judicial authority, a
member of the judiciary shall not be subject to the direction or control of
any person or authority (article 79B).

116. Special courts or other adjudicating authorities can be established by
legislation (article 92). The Labour Court is a "special court" established
to hear and to deal with labour matters pursuant to the Labour Act (Part XI
of the Labour Act, section 84(1)). In respect of labour matters, the Labour
Court exercises the same powers as the High Court (section 89(1)(d1) of the
Labour Act). No court other than the Labour Court has jurisdiction in the
first instance to hear and determine any application on labour matters
(section 89(6)). Decisions of the Labour Court on a "question of law only"
may be appealed to the Supreme Court (section 92F).

C. Other institutions

117. Other independent bodies, which are "not subject to the direction or
control of anyone", shall be established pursuant to the Constitution. Among
them is the Zimbabwe Human Rights Commission (article 100Q of the
Constitution) consisting of a chairperson and eight other members appointed
by the President of Zimbabwe. The Commission is to have the following
functions: to promote development, awareness of, and respect for, human
rights and freedoms and, to that effect, to recommend to Parliament the
necessary effective measures; to monitor and assess the observance of human
rights; to investigate the conduct of any authority or person, where it is
alleged that any of the constitutional rights has been violated; and to
assist in preparation of reports to be submitted to any regional or
international body constituted under any human rights convention, treaty or
agreement to which Zimbabwe is a party. The Human Rights Commission will
have the power to take over and continue any investigation that has been
instituted by the Public Protector (see below) into actions taken by any
officer, person or other authority in the exercise of his/her administrative
functions, where it determines that the dominant question in issue involves
an alleged violation of constitutional rights. An Act of Parliament may
confer power on the Human Rights Commission to conduct investigations on its
own initiative or on receipt of complaints; to visit and inspect prisons,
places of detention, refugee camps and related facilities in order to
ascertain the conditions under which inmates are kept there, and to make
recommendations regarding those conditions to the minister responsible for
administering the law relating to those places or facilities; and to secure
or provide appropriate redress for violations of human rights and for
injustice.

118. Articles 107 and 108 of the Constitution provide for the Public
Protector to be appointed by the President to investigate actions taken by
any officer, person or authority in the exercise of their administrative
functions in any case where it is alleged that a person has suffered
injustice in consequence of that action and it does not appear that there is
any remedy reasonably available by way of proceedings in a court or on
appeal from a court. On the basis of these provisions, an Office of the
Ombudsperson was established in 1982 by the Ombudsman Act.

119. The Organ for National Healing, Reconciliation and Integration was
established on the basis of article 7.1(c) of the GPA as "a mechanism to
properly advise on what measures might be necessary and practicable to
achieve national healing, cohesion and unity in respect of victims of pre-
and post-independence political conflicts". It is composed of three
Ministers of State appointed by the President. Its purpose was later
described as "to promote equality of treatment of all regardless of gender,
race, ethnicity, or origin; put in place practicable measures to achieve
national healing, cohesion and unity in respect of victims of pre- and
post-independence political conflicts; create an environment of tolerance
and respect among Zimbabweans from the Diaspora; as well as to assure
personal security of all persons and prevent the resort to violence for
purposes of settling any disagreements or differences".

II. Trade union legislation

A. Relevant legislative instruments

120. Zimbabwe regulates trade union and employment affairs mainly pursuant
to its Constitution; the Public Service Act [Chapter 16:04], 1996,
accompanied by the Public Service (Public Service Joint Negotiating Council)
Regulations, 1997 and the Public Service (Formation and Recognition of
Associations or Organizations) Regulations, 1998; the Health Service Act
[Chapter 15:16], 2004, accompanied by the Health Service (Health Service
Bipartite Negotiation Panel) Regulations, 2006; the Labour Act [Chapter
28:01], 78 accompanied by the Labour (Declaration of Essential Services)
Notice, 2003, the Labour Relations (Protection Against Any Acts of
Interference Between Workers' Organisation and Employers' Organisation)
Regulations, 2003, and the Labour (National Employment Code of Conduct)
Regulations, 2006. Various provisions exist that subject trade unionists to
the general law of Zimbabwe, including, in particular, the Public Order and
Security Act [Chapter 11:17], 2002 and the Criminal Law (Codification and
Reform) Act [Chapter 9:23], 2005.

121. The Constitution of Zimbabwe is the country's supreme law and any law
inconsistent with it shall, to the extent of the inconsistency, be
considered void (article 3). Chapter III of the Constitution provides for
the Declaration of Rights. Article 18(1a) 80 imposes on every public officer
a duty towards every person in Zimbabwe to exercise his or her functions as
a public officer in accordance with the law and to observe and uphold the
rule of law.

122. Under the terms of its section 2A(1), the purpose of the Labour Act is
"to advance social justice and democracy in the workplace" by providing for
the fundamental rights of employees and a legal framework for collective
bargaining to improve conditions of employment and through the promotion of
fair labour standards and the participation by employees in decisions
affecting their interests in the workplace, as well as securing the just,
effective and expeditious resolution of disputes and of unfair labour
practices. The Act prevails over any other enactment inconsistent with it
(section 2A(3)). It applies to all employers and employees except those
whose conditions of employment are otherwise provided for in the
Constitution, members of the public service governed by the Public Service
Act, members of a disciplined force (defined under section 2 as including
military, air, naval and police forces, prison service and persons employed
in the President's Office on security duties) and such other employees of
the State as the President may designate by statutory instrument (section
3).

123. Several provisions of the Labour Act entitle the Minister of Public
Service, Labour and Social Welfare to make specific regulations. Pursuant to
section 17(1), the Labour Relations (Protection Against Any Acts of
Interference Between Workers' Organisation and Employers' Organisation)
Regulations were issued in 2003. The same year, pursuant to section 102, the
Minister of Public Service, Labour and Social Welfare published the Labour
(Declaration of Essential Services) Notice which declared certain services
to be essential.

124. The Public Service Act makes provision for the Public Service
Commission and its functions, provides for the constitution and
administration of the public service and the conditions of service of its
members. Procedures for the establishment and recognition of associations or
organizations representing public service employees, as well as for their
suspension and dissolution, are set out in the Public Service (Formation and
Recognition of Associations or Organisations) Regulations, 1998. The
Regulations also set out privileges of recognized associations or
organizations. The Public Service (Public Service Joint Negotiating Council)
Regulations, 1997 provide for the establishment of the Public Service Joint
Negotiating Council for the purpose of engaging in mutual consultations and
negotiating salaries, allowances and conditions of service in the public
service.

125. The Health Service Act provides for the establishment of the Health
Service Board and its functions, defines the health service and provides for
its administration and the conditions of service of its members, and
transfers persons engaged in public health service delivery from the public
service to the health service. The Health Service (Health Service Bipartite
Negotiation Panel) Regulations, 2006, like the relevant Public Service
Regulations, provide, as their title indicates, for the establishment of the
Bipartite Negotiating Panel for the purpose of engaging in mutual
consultations and negotiating salaries, allowances and conditions of service
in the health service.

126. The Public Order and Security Act (POSA), 81 which entered into force
on 22 January 2002, deals with offences against public order. It is
supplemented by Chapter IV on crimes against public order of the Criminal
Law (Codification and Reform) Act, 82 which entered into force on 1 July
2006. The latter Act consolidated and amended the criminal law of Zimbabwe,
including through the repeal of several legislative acts, such as the
Miscellaneous Offences Act [Chapter 9:15] of 1964 and amendment of the POSA.
The First Schedule to the Criminal Law Act establishes a standard scale of
fines ranging from levels 1 to 14 and which apply to all offences under the
national legislation. The scale of fines can be periodically amended by a
prior approval of Parliament.

127. The following part of this analysis surveys the law of Zimbabwe in
relation to freedom of association in so far as it provides the legislative
context for the Commission of Inquiry's consideration of the present
complaint.

B. Legislative survey of freedom of association

Civil liberties

128. The Constitution of Zimbabwe is the principal legal source of civil
liberties in the country. Chapter III of the Constitution sets out the
Declaration of Rights. The fundamental rights and freedoms of individuals
specified in this chapter include the rights to life (article 12), personal
liberty (article 13), protection from inhuman treatment (article 15), secure
protection of the law (article 18), freedom of expression (article 20),
freedom of association and assembly (article 21), and freedom of movement
(article 22). Any person whose rights under the Declaration of Rights have
been, are being or are likely to be contravened may apply to the Supreme
Court for redress (article 24(1)).

129. Freedom of expression, association and assembly can be limited by
legislative provisions made "in the interests of defence, public safety,
public order, the economic interests of the State, public morality or public
health", as well as for the purpose of protecting the rights and freedoms of
other persons, and which are reasonably justifiable in a democratic society
(articles 20(2) and 21(3)). Furthermore, these freedoms cannot be exercised
"in or on any road, street, lane, path, pavement, sidewalk, thoroughfare or
similar place which exists for the free passage of persons or vehicles"
(articles 20(6) and 21(4)). Finally, the exercise of these freedoms by
"public officers" can also be restricted (articles 20(2) and 21(3)).

130. Article XII of the GPA referring to freedom of assembly and
association, notes that "public meetings have to be conducted in a free,
peaceful and democratic manner in accordance with the law". To that end, the
Government should "undertake training programmes, workshops and meetings for
the police and other law enforcement agencies" on the issue of freedom of
assembly and association and the "proper interpretation, understanding and
application of the provisions of securing legislation". For the purposes of
ensuring that all state bodies and institutions perform their duties
ethically, professionally and in conformity with the principles and
requirements of a multi-party democratic system, the parties agreed to
include the subjects of human rights, international humanitarian law and
statute law in the training curriculum of members of the uniformed forces
(article XIII).

131. Part II of the POSA provides for offences against constitutional
government and public security, which include such acts as publishing or
communicating false statements prejudicial to the State (section 15) and
undermining the authority of or insulting the President (section 16). Any
person who publishes or communicates a statement which is substantially
false and which may incite or promote public disorder or violence, endanger
public safety, adversely affect the defence or economic interests of
Zimbabwe, undermine public confidence enforcement agency, or interfere with,
disrupt or interrupt any essential service commits an offence under section
15 and is liable to a maximum fine of level ten and/or to imprisonment for a
period not exceeding five years. An offence under section 16 is punishable
by a fine not exceeding level six and/or imprisonment for a period not
exceeding one year.

132. Part III of the POSA deals with offences against public order. Under
section 17, any person who, acting with other persons, "forcibly disturbs
the peace, security or order of the public or any section of the public or
invades the rights of other people, intending such disturbance or invasion
or realizing that there is a risk or possibility that such disturbance or
invasion may occur", is guilty of public violence and liable to a fine not
exceeding level 12 and/or imprisonment for a period not exceeding ten years.
Section 36 of the Criminal Law Act is to the same effect. Pursuant to
section 19 of the POSA, a gathering resulting in riots, disorder and
intolerance is punishable by a fine not exceeding level ten and/or to
imprisonment for a period not exceeding ten years. Section 37 of the
Criminal Law Act punishes the same acts of participating in a gathering with
intent to promote public violence, breaches of the peace or bigotry with a
fine not exceeding level ten and/or imprisonment for a period not exceeding
five years. Additionally, section 41 of the Criminal Law Act punishes a
person who intentionally engages in disorderly or riotous conduct or uses
threatening, abusive or insulting words or behaves in a threatening, abusive
or insulting manner, intending to or realizing the possibility of provoking
a breach of the peace with a fine not exceeding level five and/or
imprisonment for a period not exceeding six months. Section 46 of the
Criminal Law Act punishes criminal nuisance (e.g. acts such as encumbrance
or obstruction of the free passage along any street, road, thoroughfare,
sidewalk or pavement; shouting or screaming in a public place to the
annoyance of the public; throwing any property from any place; and use of
any means which are likely materially to interfere with the ordinary
comfort, convenience, peace or quiet of the public or any section of the
public) by a fine not exceeding level five and/or imprisonment for a period
not exceeding six months.

133. Part IV of the POSA concerns public gatherings, defined under section
2, so as to include processions, public demonstrations and meetings.
Sections 23 and 24 place an obligation on organizations to appoint conveners
and authorized officers, in the case of processions and public
demonstrations, and responsible officers, in the case of public meetings,
who are responsible for giving notice of the public gathering. A failure to
give notice of a gathering constitutes an offence and is punishable by a
fine not exceeding level 12 and/or imprisonment for a period not exceeding
one year. Section 26 provides for consultations and/or negotiations between
a regulating authority and a convener or an authorized officer, if
necessary, on amendment of notices and conditions with respect to public
gatherings so as to avoid public disorder. The section also provides that a
person who opposes or fails to comply with a prohibition notice or any
directions or conditions, under which a gathering is authorized, shall be
guilty of an offence and liable to a fine not exceeding level 14 and/or to
imprisonment for a period not exceeding one year. However, the
abovementioned sections (23, 24 and 26) do not apply to gatherings of a
class described in the Schedule (section 26A), which includes public
gatherings of members of professional, vocational or occupational bodies
held for purposes which are not political (paragraph (c)); held by any club,
association or organization which is not of a political nature and at which
the discussions and matters dealt with are not of a political nature
(paragraph (i)); held by a registered trade union for bona fide trade union
purposes for the conduct of business in accordance with the Labour Relations
Act (paragraph (j)); or held to form any club, association or organization
which is not of a political nature (paragraph (k)).

134. Section 27 provides for a temporary prohibition on holding processions
and public demonstrations within particular police districts so as to
prevent public disorder. To that end, a regulating authority can issue an
order for a period not exceeding one month. The Minister of Home Affairs 89
may, on appeal, confirm, vary or set aside the order or give any other order
in the matter as s/he thinks just. Any person who organizes, assists in
organizing, takes part in, or attends any procession or public demonstration
held in contravention of an order under this section shall be guilty of an
offence and liable to a fine not exceeding level six and/or to imprisonment
for a period not exceeding one year. Section 27A provides for a prohibition
of all gatherings within a radius of between 20 and 100 metres of
Parliament, courts and protected places (with the exception of gatherings of
persons who are employed at institutions), unless special permission has
been granted.

135. Any prohibition notice, directions or conditions imposed pursuant to
section 26, as well as an order issued in terms of section 27, may be
appealed to the Magistrates' Court, although such an appeal will not have
the effect of suspending any prohibition order appealed against (section
27B), unless and until the court so orders.

136. Section 29 determines the powers of the police during the course of a
gathering. It specifies in subsection 4 that the degree of force which may
be used shall not be greater than is necessary for dispersing the persons
gathered and shall be proportionate to the circumstances of the case and the
object to be attained.

137. Other sections of the POSA include provisions prohibiting the carrying
of offensive weapons, including stones, at public gatherings (section 30,
equivalent to section 43 of the Criminal Law Act), and providing for a
penalty of a maximum fine of level ten and/or imprisonment for a period not
exceeding five years; disrupting public gatherings (section 31, similar to
section 44 of the Criminal Law Act, but whereas the POSA punishes this
offence with a fine not exceeding level seven and/or a maximum of two years'
imprisonment, the Criminal Law Act refers to a fine of level five and/or
imprisonment for a period not exceeding six months); etc.

Workplace relations

138. Under the Labour Act, the interests of workers in respect of their
employment are represented and advanced by trade union organizations and
their federations and/or, at the level of their 89 Or any other minister to
whom the President assigns the administration of the POSA.

139. In every establishment in which a workers' committee has been elected,
a works council composed of an equal number of representatives of the
employer and representatives drawn from members of the workers' committee
should be established (section 25A(1) and (2)). The function of a works
council is to focus on the best use of resources so as to maintain the
maximum productivity and optimum employment standards; to encourage good
relations between the employer and employees and to seek solutions to common
problems; and to promote mutual cooperation and trust in the interests of
industrial harmony (section 25A(4)). A works council should be consulted by
employers on matters including restructuring, training and education,
closure, merger and transfer of ownership of an enterprise, retrenchment of
employees, etc. (section 25A(5)). Works councils can make representations
and advance alternative proposals on the matters referred to them and an
employer shall attempt to reach consensus with the relevant council (section
25A(6)).

140. Furthermore, any employer, registered employers' organization or a
federation of such organizations and a registered trade union or a
federation of such trade unions may, at any time, form an employment council
(section 56). The Minister may also, whenever the national interest so
demands, request the establishment of an employment council (section 57). An
employment council shall sufficiently represent any area, undertaking,

industry, branch or section. The duties of employment councils include
assistance to their members in the conclusion of collective bargaining
agreements and overseeing their implementation, as well as the prevention
and settlement of disputes between employers and their organizations on the
one hand, and employees, workers' committees or trade unions, on the other
hand (section 62(1)).

Right to organize and join organizations

141. The Constitution guarantees to everyone the right to freedom of
association, including the right to form and belong to trade unions (article
21(1)).

142. According to section 4(1) and (2) of the Labour Act, every employee has
the right to be a member of a trade union, which includes the right to take
part in the formation and registration of a union. However, the Labour Act
does not apply to members of the public service governed by the Public
Service Act, members of a disciplined force and such other employees of the
State as the President may designate by statutory instrument (section 3).

143. Under the terms of section 27(1) and (2) of the Labour Act, "any group
of employees may form a trade union" and "any group of employers may form an
employers' organization". Furthermore, pursuant to section 50, every
employee has a right to be a member of any registered trade union
representing his/her undertaking or industry and every employer is entitled
to be a member of any registered employers' organization representing
his/her undertaking or industry.

144. Section 23(1) specifies that no managerial employee shall be appointed
or elected to a workers' committee, nor shall a workers' committee represent
the interests of managerial employees, unless such a workers' committee is
composed solely of managerial employees.

145. Under section 24(4) of the Public Service Act, any member of the public
service may join a recognized association or organization and participate in
its activities. 97 Pursuant to the Public Service (Formation and Recognition
of Associations or Organisations) Regulations, any group of members of the
public service may form an association or organization for the purpose of
making representations to the Minister (of Public Service) or the Public
Service Commission on matters affecting its members, including in particular
their conditions of service (regulations 2 and 3(1)).

Establishment of organizations

146. Any trade union or employers' organization may, if it so desires, apply
for registration (section 29(1) of the Labour Act). Upon its registration,
an organization becomes "a body corporate" and therefore capable of
acquiring, holding or alienating property and any other act which its
constitution requires or permits (section 29(2)). It can further exercise
the rights provided under section 29(4), which include the right to
represent its members, the right to various facilities, the right to
recommend a collective labour action and the right to bargain collectively.
In terms of section 104(3)(c), no collective action may be recommended or
engaged in by any trade union unless it is registered.

147. An application for registration is made to the Registrar, who shall
publish it in the Gazette and invite any person who wishes to make any
representations relating to the matter within a period of not less than 30
days (section 33). Accreditation proceedings are held to determine whether
or not a trade union or an employers' organization should be registered

(section 41(a)). For that purpose, the Registrar shall issue a 30-day notice
of proposed accreditation proceedings inviting all interested parties to
submit any representations that they may wish within a further 30 days
(section 42).

148. Under the terms of section 36(1), after holding accreditation
proceedings, the Registrar may "grant or refuse an application for the
registration". When granting any application for registration, the Registrar
may, after consultation with the applicant, increase or reduce the interests
or area in respect of which the applicant applied for registration (section
36(2)). In taking a decision on registration, the Registrar takes into
account representations made by employers and employees who might be
affected, the Minister and any member of the public likely to be affected;
the desirability of affording the majority of employees and employers within
an undertaking or industry effective representation in negotiations
affecting their rights and interests; the desirability of reducing to the
minimum the number of entities with which employees and employers have to
negotiate; and the outcome of the representations or accreditation
proceedings as to the representativeness of the trade union or employers'
organization (section 45). The Registrar shall notify all interested parties
who appeared at the proceedings of his or her decision in writing and the
reasons thereof (section 44). While a person aggrieved by a decision of the
Registrar may file an appeal to the Labour Court (section 47), the filing of
an appeal does not have a suspensive effect (section 48(2)). Moreover, the
Registrar may impose "reasonable" restrictions on the activity of any trade
union or employers' organization involved in the appeal in order to protect
the reasonable interests of the public and of persons concerned (section
48(3)). Failure to comply therewith is an offence punishable by a fine not
exceeding level seven and/or imprisonment for a period not exceeding two
years (section 48(5)).

149. With regard to public service employees, section 24(1) of the Public
Service Act provides that the Minister of Public Service may declare any
organization or association representing all or any members of the public
service as a recognized association or organization. The Public Service
(Formation and Recognition of Associations or Organizations) Regulations set
out a twofold procedure for the establishment and recognition of
associations or organizations representing public service employees.

150. Regulation 4 provides for provisional recognition. For this purpose, an
association or organization seeking to be recognized, shall, within six
months of its formation, apply for provisional recognition. The Minister
shall gazette the application inviting representations from any interested
person within a period of not less than 30 days. As soon as practicable
after the expiry of that period, the Minister shall issue a further notice
advising any interested party of the accreditation proceedings to be held in
not less than 30 days. At these proceedings, the Minister or a person
authorized by the Minister shall call upon the association or organization
and any interested person present to make any representations in connection
with the application. The Minister or an authorized person may provisionally
recognize the association or organization, decline provisional recognition,
or recognize it provisionally subject to any alteration in the class or
classes of members of the public service sought to be represented. The
Minister shall, on request, supply any interested person with the reasons
for his or her decision.

151. A provisionally recognized association or organization may, not less
than six months or more than one year after being so recognized, apply to
the Minister for confirmation of its recognition (regulation 5). The
procedure for provisional recognition applies mutatis mutandis to the
confirmation procedure.

152. In any determination of the recognition of an association or
organization, the Minister shall take into account: the representations by
the Public Service Commission and members of the public service who might be
affected; the desirability of affording the majority of the members of the
public service effective representation in negotiations affecting their
rights and interests;

the desirability of reducing to the minimum the number of entities with
which the Commission has to negotiate; whether the representations indicated
that the association or organization will not be substantially
representative of the employees it proposes to represent; and whether the
constitution of an association or organization is in conformity with the
Regulations (regulation 11).

Drafting of constitutions and election of officers

153. Pursuant to section 28(1)(b) of the Labour Act, every trade union and
employers' organization shall adopt a constitution within a period of six
months of its establishment. A written constitution should contain
particular points concerning the organization's membership, election of
officers, internal administration, dissolution, etc (sections 28(1) and 35).
Once adopted, it shall be submitted to the Minister (section 28(3)).

154. Under the terms of section 4(1)(a), any employee has the right to be an
officer of a trade union. Section 51 provides for supervision of the
election of officers. By virtue of this section, the Minister may, where the
national interests so demand, supervise the holding of elections to any
office or post in a registered trade union or employers' organization. In
particular, the Minister may, on the advice of the Registrar, set aside any
election if the election was not properly conducted or if the result of the
election did not represent the views of the electors; postpone, or change
the venue of or procedure for, any election to ensure that the views of
electors are given proper expression; assign responsibility for the conduct
of any election to any trade union or employers' organization; prohibit any
person from conducting an election campaign if the conduct of such a
campaign is leading to a misrepresentation of any issues involved and the
consequences of such misrepresentation have serious implications for the
national interest; and make regulations for controlling and regulating
elections, and for fixing the qualifications of officers of registered trade
unions and employers' organizations. Any person who is aggrieved by any
action taken by the Minister may appeal to the Labour Court.

Administration of organizations

155. A trade union or employers' organization may, before it has adopted its
written constitution, raise funds in respect of membership fees up to an
amount not exceeding that specified by the Minister pursuant to a statutory
instrument (section 28(2) of the Labour Act).

156. Once established, registered trade unions have the right to collect
trade union dues (sections 29(4)(h) and 52). Trade union dues can be
collected and transferred by means of a check-off scheme or any other manner
agreed between the trade union, the employees and the employer, or by an
employee's written authorization (section 54(1)). Any employer who, in
violation of such an agreement, fails or refuses to collect and transfer
trade union dues is guilty of an offence and liable to a fine not exceeding
level seven and/or to imprisonment for a period not exceeding two years
(section 54(6)).

157. The Minister may, by notice in writing to any employer, prohibit or
modify any arrangements made for the collection of union dues and, to that
effect, give directions relating to a reduction or increase of the amount of
the deductible dues and the deposit of the union dues into a trust fund
instead of the union's account, as well as in respect of such other matters
as the Minister considers necessary or desirable in the interest of the
employees concerned (section 54(2) and (3)). Any person who is aggrieved by
the Minister's direction may appeal to the Labour Court, provided that where
the Minister certifies that the reason for the direction was a threat to
engage or the actual engagement by the registered trade union in an unlawful
collective job action, any ruling by the Court rescinding or amending the
direction shall not have effect for six months from the date of its issue
(section 54(5)).

158. Pursuant to section 55, the Minister may make regulations providing for
the proper and systematic collection, management, application and
disbursement of trade union dues by trade unions. Such regulations may
provide for the maximum amount and method of assessment of union dues; the
accounting procedures to be followed in connection with their collection,
management, application and disbursement; the appointment of auditors and
the keeping of accounting books; the percentage of union dues to be paid by
a union to any association or congress of trade unions recognized by the
Minister as being representative of all or most registered trade unions in
Zimbabwe; limitations as to the spending of trade union dues; limitations on
the salaries and allowances that may be paid to trade union employees; and
limitations on the staff that may be employed and the equipment and property
that may be purchased by trade unions. Moreover, the Minister may direct any
trade union to supply information in connection with the acquisition and
disbursement of union dues. "Any trade union that fails or refuses to comply
with the order of the Minister is guilty of an offence and liable to a fine
not exceeding level seven and/or to imprisonment for a period not exceeding
two years."

159. Section 120 confers on the Minister the right to investigate trade
unions and employers' organizations. Under the terms of this section, "if
the Minister has a reasonable cause to believe that the property or funds of
any trade union, employers' organization or federation are being
misappropriated or misapplied, or that the affairs of any trade union,
employers' organization or federation are being conducted in a manner that
is detrimental to the interests of its members, the Minister may order that
such trade union, employers' organization or federation be investigated".
For this purpose, the Minister shall appoint an investigator who shall, at
all reasonable times and without prior notice, have power to enter any
premises, to question any person employed on the premises, to inspect and
make copies of and take extracts from any relevant books, records or other
documents on the premises.

Facilities

160. Under section 7(2) of the Labour Act, 103 every employer shall allow a
trade union representative reasonable access to his/her employees at their
place of work during working hours and provide them with "reasonable
facilities and access for the exercise of his/her functions". Any person who
contravenes this provision shall be guilty of an offence and is liable to a
fine not exceeding level seven and/or to imprisonment not exceeding two
years (section 7(3)).

161. Special leave without loss of pay not exceeding 12 days in a calendar
year shall be granted by an employer to an employee who is required to
attend as a delegate or an office-bearer any meeting of a registered trade
union representing employees within the undertaking or the relevant industry
(section 14B(c)). Under the terms of section 29(4a), an official or an
office-bearer of a registered trade union is entitled to take such
reasonable paid or unpaid leave during working hours as may be agreed under
a collective bargaining agreement for the purpose of exercising his/her
trade union functions.

Strikes and pickets

162. In accordance with section 104(1) of the Labour Act, all employees,
workers' committees and trade unions shall have the right to resort to
collective job actions 104 to resolve disputes of interest. 105 However,
pursuant to sections 9(g), 30(3)(a) and 104(3)(c), only a registered trade
union can recommend or call for a collective job action. Furthermore, under
section 9(f), no strike should be undertaken while a valid collective
agreement is in force.

163. Strikes are prohibited in three circumstances: in essential services;
in the case of a dispute of rights; and if the dispute is referred to
arbitration (section 104(3)(a)). 106 Essential services are defined under
the Labour Act to mean "any service the interruption of which endangers
immediately the life, personal safety or health of the whole or any part of
the public and that is declared by notice in the Gazette made by the
Minister, after consultation with the appropriate advisory council, 107 if
any, to be an essential service" (section 102). Any person who is aggrieved
by any statutory instrument declaring any service or occupation to be an
essential service may appeal against such notice to the Labour Court, which
may vary or revoke the statutory instrument as it deems just (section 103).

164. Such a statutory instrument declaring essential services was issued in
2003. 108 Pursuant to the Labour (Declaration of Essential Services) Notice,
the following services are essential:

?? fire services (drivers, control room attendants, chief fire officers and
assistants, divisional officers and supervisors of fighters and station
officers);

?? supply and distribution of water (pump operators, responsible for water
treatment, plumbers, electricians and engineers);

?? veterinary services (laboratory technologists and assistants, veterinary
surgeons and doctors, persons employed in a disease surveillance unit, field
branch personnel of the veterinary services department, animal health
inspectors, veterinary livestock technicians and the head of field
veterinary services, involved in the diagnosis and control of rabies,
foot-and-mouth disease and anthrax and the control of locusts and army
worm);

?? services provided by revenue specialists involved in the performance of
security and health checks at airports and other ports of entry on behalf of
the Zimbabwe Revenue Authority;

?? health services (ambulance drivers, doctors, nurses, pharmacists,
radiographers, physiotherapists, pharmacy technicians, rehabilitation
technicians, dental therapists, medical laboratory scientists,
technologists, assistants and technicians, dentists, environmental health
officers and technicians, electrocardiogram technicians, hospital equipment
technicians, X-ray operators, darkroom assistants, and occupational
therapists);

?? transport and communication services (telecommunication technicians,
drivers and mechanics in the industry, aircraft technician engineers, air
traffic controllers, meteorological technicians, road technicians and
engineers, and engineers, signals officers and engine men at the National
Railway of Zimbabwe);

?? electrical services provided by a person licensed under the Electricity
Act and performed by the operational staff and any staff of contractors
hired by such person; and

?? services provided by any public broadcaster during a state of disaster or
an emergency likely to be declared a state of disaster.

In terms of the Notice, any non-essential service may be declared essential
by the Minister if a strike in a sector, service industry or enterprise
persists to the point that the lives, personal safety or health of the whole
or part of the population is endangered.

165. Section 104(2) sets out the procedure for the declaration of a strike,
which includes an attempt to conciliate the dispute and, in case of failure,
a 14-day strike notice. No strike can be organized without the agreement of
the majority of the employees voting by secret ballot (section 104(3)(e)).

166. Furthermore, according to section 104A, a registered trade union or a
workers' committee may authorize a picket, i.e. a gathering of members and
supporters of a trade union or workers' committee, for the following
purposes: demonstrating peacefully in support of any collective job action
or in opposition to any lock-out; and peacefully persuading other members of
the trade union or the workers' committee or employees of the industry,
undertaking or workplace represented by the trade union or workers committee
to take part in the collective job action or demonstration.

167. An employer may not employ any person to perform the work of a
locked-out employee (section 108(5)).

168. No person is liable for participating in a lawful collective job
action, except for acts or omissions threatening or resulting in the
destruction of, or damage to, property other than the perishing of goods
caused by employees' absence from work on account of such collective action.
All employees, and officials or office-bearers of unions are entitled to the
same immunity and, in addition, to the protection of their employment
(section 108(2) and (3)).

169. Any person who "recommends, advises, encourages, threatens, incites,
commands, aids, procures, organizes or engages in any collective action
which is prohibited in terms of section 104(3)" 109 is guilty of an offence
and liable to a fine not exceeding level 14 and/or to 109 That is strike in
essential services; in the case of a dispute of rights; or if the dispute is
referred to arbitration.

170. The Minister may further suspend for a period not exceeding 12 months
the right of the trade union to levy, collect or recover union dues by means
of a check-off scheme, if s/he "believes on a reasonable ground" that the
union contravened the provisions concerning prohibited collective actions.
Such an order of the Minister is cancelled if no criminal proceedings are
instituted against the trade union in question or if the Labour Court's
decision acquits the union (section 109(3) and (5)).

Right of organizations to establish federations

171. Pursuant to section 27(3) of the Labour Act, "any group of trade unions
or employers' organizations may form a federation". According to section 2,
"federation" is "a group of trade unions or employers' organizations, each
of which is representative of a single undertaking or industry". The
requirements for the establishment of federations are the same as those for
the establishment of trade unions and employers' organizations (section 28).
In general, for the purposes of the Labour Act, federations enjoy the same
rights as registered trade unions and employers' organizations.

Dissolution and suspension of organizations

172. Any interested person, including trade unions, may apply to the
Registrar for the suspension or rescission of the registration of a trade
union (section 39(1) of the Labour Act). The Minister may, after
consultation with the union concerned, direct the Registrar to hold
accreditation proceedings to determine whether the registration should be
suspended or rescinded if he considers that a trade union no longer
adequately represents the interests or area for which it was registered or
has failed to perform any of its functions pursuant to the Labour Act
(section 39(2)). For these purposes, the Registrar must gazette the
application, inviting representations from any person within 30 days
(section 39(3)). Following the 30-day period, the Registrar shall issue a
notice of proposed accreditation proceedings, inviting all interested
parties to submit any representations they may wish within a further 30 days
(section 42). The Registrar shall hold accreditation proceedings and
consider representations to determine whether to suspend or rescind the
registration (sections 40, 41 and 43). In determining whether or not to
suspend or rescind the registration, the Registrar shall take into account:
the representations by employers or employees who might be affected, the
Minister, or any interested member of public; the desirability of affording
the majority of employees in an undertaking or industry effective
representation in collective bargaining; the desirability of reducing to the
minimum the number of entities with which employees and employers have to
negotiate; whether the representations indicated that the trade union would
be sufficiently representative; and the compliance of the trade union
constitution with the Act (section 45).

Following accreditation proceedings, the Registrar shall inform all those
present of his or her decision and the reasons thereof (section 44). The
Registrar's decision may be appealed to the Labour Court (sections 40(5), 47
and 49), although such an appeal will not suspend the operation or effect of
the decision appealed against (section 48(2)).

173. Furthermore, the report of an investigation ordered by the Minister
into any trade union (registered or unregistered) may recommend in the case
of an unregistered trade union that it be wound up; and in the case of a
registered trade union, that it be deregistered or wound up (section 120).
If the Minister accepts a recommendation of an investigator, s/he shall, in
the case of an unregistered trade union, make an application to the High
Court; and, in the case of a registered trade union, make an application to
the Labour Court (section 120).

174. In addition, the Labour Court may, in the context of strike, issue a
disposal order providing, inter alia, for the suspension or rescission of
the registration of the trade union involved in the collective job action
(section 107(3)(a)(vi)).

175. With regard to public service employees' organizations, section 24(2)
of the Public Service Act provides that the Minister may at any time revoke
the declaration of recognition of an organization. Where there is reasonable
cause to believe that a recognized association no longer adequately
represents the interests of the members for which it was recognized; or its
property or funds are being misappropriated, or its affairs are otherwise
being conducted in a manner detrimental to the interests of its members as a
whole; or it has failed to perform any of its functions in terms of the
Regulations, the Minister may, after affording the association or
organization a reasonable opportunity to make representations, suspend or
withdraw its recognition (regulation 10(1) of the Public Service (Formation
and Recognition of Associations or Organisations) Regulations). In any
determination of the suspension or withdrawal of recognition of an
association or organization, the Minister shall take into account: the
representations by the Public Service Commission and interested members of
the public service; the desirability of affording the majority of the
members of the public service effective representation in negotiations
affecting their rights and interests; the desirability of reducing to the
minimum the number of entities with which the Public Service Commission has
to negotiate; whether the representations indicated that the association or
organization will not be substantially representative of the employees it
proposes to represent; and whether the constitution of an association or
organization is in conformity with the Regulations (regulation 11). The
Minister shall, on request, supply any interested person with the reasons
for his or her decision (regulation 10(3)).

Protection against acts of anti-union discrimination

176. According to section 4(3) of the Labour Act, no term or condition of
employment and no offer of employment shall include a requirement that an
employee or prospective employee shall relinquish his /her membership or
office of a trade union or a workers' committee or not take part in the
formation of a trade union or a workers' committee. Any such requirement is
considered to be an unfair labour practice (section 8(a)) and shall be void.
Without prejudice to any other remedy that may be available in any competent
court, any person who is aggrieved by any infringement or threatened
infringement of this right is entitled to apply for an order directing the
employer or other party concerned to cease the infringement or threatened
infringement or/and an order for damages for any loss caused either directly
or indirectly as a result of the infringement (section 4(4)).

177. In terms of section 89(2)(c), the Labour Court may order a cessation of
an unfair labour practice, back pay from the time that the dispute or unfair
labour practice arose and reinstatement or employment. Instead of
reinstatement, payment of damages, including punitive damages, can be
awarded to an employee who has been wrongfully dismissed.

178. Section 24(5) of the Public Service Act provides that a public servant
who is not a member of a recognized association shall not be debarred from,
or prejudiced in respect of, any appointment, promotion or advancement
within the public service.

Protection against acts of interference

179. A trade union shall not represent employers and an employers'
organization shall not represent employees other that managerial employees
(section 45(1)(b) of the Labour Act). The same applies to workers'
committees (section 23(1)).

180. Section 7(1) prohibits hindering, obstructing or preventing employees
from "forming or conducting any workers' committee for the purpose of airing
any grievance, negotiating any matter or advancement or protecting the
rights or interests of employees", or threatening "any employee with any
reprisal for any lawful action taken in advancing or protecting his/her
rights". Any person who contravenes this provision shall be guilty of an
offence and liable to a fine not exceeding level seven and/or to
imprisonment not exceeding two years (section 7(3)).

Furthermore, preventing, hindering or obstructing employees in the exercise
of trade union rights by any act or omission is an unfair labour practice
under section 8.

181. Section 3 of the Labour Relations (Protection Against Any Acts of
Interference Between Workers' Organisation and Employers' Organisation)
Regulations essentially takes up the wording of Article 2 of Convention No.
98 and provides that any employer or a representative of an employers'
organization or workers' organization who commits an act of interference
shall be guilty of an offence and liable to a fine not exceeding level five
and/or to imprisonment for a period not exceeding six months.

Collective bargaining

182. As discussed above, under the Labour Act, workers can be represented by
a trade union, which may or may not be registered, and/or by a workers'
committee. However, an unregistered trade union acting as a collective
bargaining agent commits an unfair labour practice (section 9(e) and (h)).
Bargaining collectively with another union when a registered trade union
exists is also an unfair labour practice by an employer (section 8(f)).
However, while the first paragraph of section 74(1) states that Part X of
the Act pertaining to collective bargaining agreements applies only to
agreements negotiated by registered trade unions, the second paragraph of
the same section indicates that an unregistered trade union shall not be
prevented from negotiating a collective agreement. Furthermore, according to
section 31, a registered trade union, upon the Minister's authorization, may
act as the agent union of employees in any undertaking or industry who are
not otherwise represented by a registered trade union if not less than 50
per cent of the employees concerned are in favour of such a trade union
representing them or if the Minister so requests. An unregistered or a
registered trade union can also request another registered trade union to
act as its agent union.

183. A workers' committee may bargain collectively by virtue of section
24(1)(b). Where an appropriate trade union exists to represent employees,
section 24(3) sets out the following rules. If the trade union has no
collective agreement with the employer concerned, a workers' committee can
bargain collectively with the written authorization by the union concerned.

Where there is a collective bargaining agreement, a workers' committee can
negotiate only to the extent permitted by such a collective bargaining
agreement, or where the Minister certifies that the issue in question was
omitted from or included in the principal collective bargaining agreement
when it should not have been so omitted or included, or the parties to the
principal collective bargaining agreement have failed or are not in a
position to reach an agreement on such an issue. Every collective bargaining
agreement negotiated by a workers' committee shall be referred to the
employees and the trade union concerned. It becomes binding if approved by
the trade union and by more than 50 percent of the employees (section
25(1)). If a collective agreement contains a provision that is, or that has
become, inconsistent with legislation in force or is unreasonable or unfair,
the Minister may direct the parties to negotiate an amendment, and report
back. The Minister may then amend the agreement in accordance with the
report, or in such other manner that is consistent with the considerations
of legislative consistency, reasonableness and fairness (section 25(2)-(4)).

184. Pursuant to section 77, the parties to collective bargaining may be
represented by committees, delegates or agents and are assisted by an
employment council consisting of an equal number of members representing
registered trade unions and employers (section 62(1)(a)).

185. Section 74 determines the scope of collective agreements, which can
regulate any conditions of employment of mutual interest to the parties, but
should not be inconsistent with the Labour Act. 113 In addition to
collective agreements, the Minister, after consultation with any appropriate
advisory council, 114 may make regulations providing for the development,
improvement, protection, regulation and control of employment and conditions
of employment (section 17). Such regulations may provide for the following:
minimum wages, benefits, remuneration, social security, retirement, pension,
the deductions which may be made from the wages of employees, the hours of
work, overtime, work shifts, rest and meal breaks, the provision of food and
other services at work, sick leave, maternity leave, holidays and other
conditions of employment.

186. Collective agreements should be negotiated in good faith and failure to
do so constitutes an unfair labour practice (section 75). Furthermore, an
employer who refuses to negotiate in good faith with a workers' committee or
a trade union which has been duly formed and authorized to bargain
collectively commits an unfair labour practice (section 8(c)).

187. After negotiation, a collective agreement concluded by trade unions and
employers' organizations shall be submitted to the Registrar for
registration (section 79(1)). "Where any provision of a collective
bargaining agreement appears to the Minister to be inconsistent with this
Act or any other enactment; or unreasonable or unfair, having regard to the
respective rights of the parties; he may direct the Registrar not to
register such collective bargaining agreement until it has been suitably
amended by the parties thereto" (section 79(2)).

188. The terms and conditions of a registered collective bargaining
agreement become effective and binding either from the date of its
publication as a statutory instrument or from such other date as may be
specified in the agreement (sections 80 and 82(1)). Where a collective
bargaining agreement which has been registered contains any provision which
is or has become inconsistent with the legislation in force or "unreasonable
or unfair, having regard to the respective rights of the parties", "the
Minister may direct the parties to the agreement to negotiate within such
period as he/she may specify for the amendment of the agreement in such
manner or to such extent as he/she may specify" (section 81(1)(c)). It is a
duty of the parties to the collective bargaining agreement to negotiate in
absolute good faith for the amendment of the agreement and to report back to
the Minister within the specified period of time as to the extent to which
they have been able or unable to agree. Upon receipt of the report of the
parties the Minister may amend the collective bargaining agreement in
accordance with the report or in such other manner as is consistent with the
considerations above. Any person who is aggrieved by any action taken by the
Minister under the terms of this section may appeal to the Labour Court
(section 81(5)).

189. In the case of a dispute, a labour officer shall attempt to settle it
through conciliation or, if agreed by the parties, by reference to
arbitration (section 93(1)). If a dispute is not settled within 30 days (or
any other period agreed by the parties), a labour officer shall refer the
dispute to compulsory arbitration if it is a dispute of interest and the
parties are engaged in an essential service, or with the agreement of the
parties (section 93(3) and (5)). If it is not possible for any reason to
refer the dispute to compulsory arbitration, any party to the dispute may
apply to the Labour Court (section 93(7)). When a dispute is referred to
compulsory arbitration, no employee, workers' committee, trade union,
employer or employers' organization shall engage in a collective job action
in respect of the dispute, at the risk of being found guilty of an offence
and liable to a fine not exceeding level eight and/or to imprisonment for a
period not exceeding two years (section 98(11) and (12)). An arbitration
award has the effect of a civil judgment (section 98(15)).

190. Any person who fails to comply with a binding collective agreement
commits an unfair labour practice and is guilty of an offence and liable to
a fine not exceeding level seven and/or to imprisonment for a period not
exceeding two years (section 82(3)). If a registered collective agreement
provides for a conciliation and arbitration procedure for a category of
dispute, that procedure is the exclusive procedure for the determination of
disputes (section 82(4)).

191. With regard to the conditions of service of public servants, including
their remuneration, benefits, leave of absence, hours of work and
discipline, section 19(1) of the Public Service Act provides that they
should be determined by the Public Service Commission in consultation with
the Minister. Such conditions may be fixed by means of service regulations,
notices, circulars or in such other manner as the Commission considers will
best bring the conditions to the attention of public servants (section
19(2)). Section 20 further provides that the Commission shall engage in
regular consultations with recognized associations and organizations in
regard to the conditions of service of public servants. In this respect, the
Public Service (Formation and Recognition of Associations or Organisations)
Regulations provide for the right of a recognized association or
organization to make representations to the Commission and the Minister
(regulation 6(2)(a)). However, notwithstanding this obligation, the
conditions of service so fixed or determined by the Commission shall not be
invalid solely on the ground that they were not subject to prior
consultations or were not agreed to by all the parties to a prior
consultation (section 20 of the Public Service Act).

192. The Public Service (Public Service Joint Negotiating Council)
Regulations, 1997, establish the bipartite 115 Joint Negotiating Council to
engage in mutual consultations and negotiate salaries, allowances and
conditions of service in the public service (regulation 3). The Council's
duty is to conclude and enter into agreements on salaries, allowances and
conditions of service for submission to the Minister for his or her
consideration (regulation 4(f)).

193. Similar arrangements exist for consultations and negotiations in the
health service under the Health Service (Health Service Bipartite
Negotiating Panel) Regulations, 2006.

10. Zimbabwe and international labour standards: Consideration by the ILO
supervisory bodies

194. Zimbabwe's observance of Conventions Nos 87 and 98 has been examined by
both the general and special ILO supervisory mechanisms. The Committee on
Freedom of Association has examined nine complaints from workers'
organizations, and the Committee of Experts has examined the legislative
aspects of Zimbabwe's observance of both Conventions since their
ratification.

I. Committee on Freedom of Association

195. The first complaint against Zimbabwe was filed in 1996. The ICFTU filed
a complaint alleging that police violently broke up a peaceful demonstration
(Case No. 1909). The complainant alleged that 100 workers who had gathered
in solidarity with striking nurses and doctors had been attacked by 50
police officers firing tear gas and using clubs to beat those who tried to
leave. The police allegedly arrested Mr Morgan Tsvangirai (ZCTU Secretary
General) and Mr Isaac Matongo (ZCTU Vice-President) and questioned them at
the police station. The complainants commented upon a general failure in
social dialogue and unrest in the public sector throughout 1996, epitomized
by the unilateral dismissal of 1,000 doctors and nurses in the face of
grievances, leading to a three-week health sector strike.

196. The Government categorically denied violence on the part of the police,
and emphasized the constitutional guarantee of freedom of association in
Zimbabwe. It stated that no court cases had been based on these allegations,
nor were there any medical reports of injuries. The Government stated that
when a group of people had attempted to enter the court that was hearing the
case concerning the strike by doctors and nurses, the situation had become
violent. As a result, after appropriate warnings, the police had used tear
gas to disperse the crowd and restore order without assaulting anyone. While
no one had been arrested, two ZCTU officials had been questioned at the
police station about an intended general strike. Finally, the Government
stated that, as doctors and nurses were considered to work in essential
services in Zimbabwe, their strike was accordingly illegal.

197. In the context of the contradictory statements, the Committee insisted
upon the principles concerning the right to peaceful demonstration and urged
that trade unionists not be questioned in police detention in the future.

198. In the following year, 1997, a case was brought by the International
Federation of Commercial, Clerical, Professional and Technical Employees in
relation to a strike by employees of the Standard Chartered Bank (Case No.
1937).

The bank allegedly dismissed 365 striking employees, who were obliged to
reapply for their jobs and accept temporary contracts with lower terms and
conditions.

199. The Government clarified that the disposal order was issued pursuant to
the Labour Relations Act, 1996, and that a case concerning the facts was
still before the High Court. It further explained that the Labour Relations
Act allowed for voluntary or compulsory arbitration; here, three grievances
had been resolved during four meetings between the parties, and the parties
had agreed that the one remaining matter should be referred to compulsory
arbitration. The Government argued that the employees went on strike despite
this agreement. The disposal order, which had been issued after a hearing at
the Ministry, was sent to the employees by the bank, with a request that
they return to work within two days, or disciplinary action would be taken.

200. The Committee recommended amendments to the Labour Relations Act, and
the reinstatement of the dismissed workers. The case was followed up by the
Committee until 2007. A 1999 Labour Relations Tribunal order to reinstate
211 workers 120 was overturned by the Supreme Court in 2000 despite it
having upheld the substantive decision; 121 in 2001, the Committee was
advised that a settlement agreement had been reached to the satisfaction of
the workers and employers. 122 In 2003, noting with interest that the
provisions of the Labour Relations Act concerning compulsory arbitration had
been amended, the Committee recommended further amendments to ensure that
workers could take industrial action in relation to social and economic
policy, that imprisonment for peaceful strikes was not possible, and that
sanctions were proportionate to the seriousness of the infringements in the
case of illegal strikes.

201. In 1999, a complaint was brought by the ZCTU alleging serious
violations of human and trade union rights in 1997 and 1998 (Case No. 2027).
The ZCTU alleged that the police violently intervened in mass demonstrations
on 9 December 1997, injuring scores of people in the ensuing confusion and
stampede. Further allegations concerned an assault on the Secretary General
in union offices on 11 December 1997 and arson in the union's western region
offices on 5 March 1998; neither of these events resulted in a conviction by
the courts. Finally, the complainants alleged that in November 1998 the
President used the Presidential Powers (Temporary Measures) Act to declare
all industrial action illegal, including a proposed ZCTU stay-away on 27
November 1998.

202. The Government replied that the police had intervened in the mass
demonstrations in 1997 on account of looting. It further stated that a
person charged in relation to the assault on the ZCTU's Secretary General
had been found not guilty, and that an arrest docket had been issued in
relation to the arson. The Government explained that the prohibition on
industrial action was due to ZCTU actions that were crippling the economy,
despite an existing agreement between the social partners. It pointed out
that the order in question had expired on 27 May 1999 and had not been
renewed. Finally, the Government indicated that the ZCTU's economic sabotage
involved a political agenda, as was evidenced by the union's president
becoming the leader of the MDC.

203. The Committee reiterated the importance of a climate in which violence
was not tolerated. It recommended that independent inquiries be established
in relation to the assault and arson, and trusted that the Government would
refrain in future from restricting the right of workers' organizations to
protest in respect of social and economic policies affecting workers, noting
in this regard the existence of a draft Labour Relations Amendment Bill,
which appeared to so restrict protest action.

204. This case was followed up by the Committee until 2007. Despite
amendments to the Labour Relations Act, now the Labour Act, concerns
remained. The Government continued, until 2007, to reiterate its position
that independent inquiries in these cases were not appropriate and that
further legislative amendments in accordance with the Committee's requests
were not required. The Committee regretted the Government's "continued and
long-standing failure to cooperate".

205. In 2000, Case No. 2081 was brought by the ZCTU concerning the power
provided for in the Labour Relations Act for the Government to register and
deregister trade unions and cause investigations into trade unions.
Specifically, the ZCTU asserted that in February 2000 an investigator had
been appointed to look into the ZCTU's affairs. The Government indicated
that such provisions were necessary to ensure that funds and properties were
being used for workers' activities. The Government contended that the ZCTU's
formation of a political party - the MDC - was resented by some trade unions
affiliated to it, as the MDC was using the union's offices and facilities.

206. The Committee considered that the legislation infringed the
requirements of the Conventions in that it entitled public authorities to
enter trade union premises without prior authorization, provided for
searches without a court warrant and allowed investigators to inspect
financial and other records. The Committee held that in practical terms the
investigation prohibited the ZCTU from engaging in political activities. The
Committee recalled that governments should not attempt to interfere with the
formal functions of a trade union movement because of its freely established
relationship with a political party, and that provisions imposing a general
prohibition on political activities by trade unions were contrary to the
principles of freedom of association. Accordingly, the Committee urged the
Government to stop the investigation into the ZCTU, and to introduce
legislative amendments to the Labour Relations Act in this regard. This case
was followed up by the Committee until 2004, when it regretted that no
action had been taken and referred the matter to the Committee of Experts.

207. In 2002, two cases were filed with the Committee by the ICFTU. Case No.
2184 concerned alleged interference and a threat of deregistration; Case No.
2238 concerned alleged arrest, detention, assault and governmental
interference. Both of these cases were listed as serious and urgent cases
requiring the Governing Body's special attention.

208. In Case No. 2184 it was alleged that on 14 March 2002 police officers
attempted to enter the headquarters of the ZCTU to monitor a meeting of its
executive council. As the union leadership did not allow them to enter, the
police prevented the meeting from taking place. Further allegations
concerned the authorities' alleged intention to deregister the ZCTU.

209. The Government stated that police officers approached the ZCTU to
ascertain the nature of the meeting, at which point the executive council
abandoned its meeting citing police interference. The Government stated that
the police action was in accordance with the POSA, which required prior
notification of public meetings and authorized their monitoring by police.
It further informed the Committee that on the basis of a petition filed by
the ZCTU, the High Court had held in April 2002 that the POSA did not, in
fact, apply to ZCTU meetings. The Government alleged that the meeting was
not a genuine trade union meeting but was aimed at planning mass action
against the Government, as shown by the ZCTU's call for a stay-away two days
later. The Government reiterated that it would not interfere in genuine
trade union meetings, but if it had good cause to believe the meetings were
of a political nature and contravened the POSA, it would do so.

210. The Committee urged the Government to ensure that such interference by
the authorities in the meetings and internal affairs of trade unions was not
repeated and to implement the High Court order prohibiting police from
attending a future ZCTU council meeting. The case was mentioned as a serious
and urgent case.

211. Case No. 2238 concerned allegations that nine trade union leaders were
arrested on 9 December 2002 and released on 11 December, after a judicial
order for their release. One of the arrested trade unionists was beaten and
warned that unless he ceased his trade union activities he would be
"eliminated". The complainant further alleged that riot police had disrupted
a ZCTU meeting and assaulted workers. The Government stated that the
detention was for the purposes of questioning about a mass stay-away called
by the ZCTU and that the persons in question were members of a political
organization whose agenda was to topple the Government. They were questioned
in this connection, and not in connection with activities linked to the ZCTU's
mission.

212. The Committee recalled that trade union activities cannot be restricted
solely to occupational matters and workers' organizations should be able to
voice their opinions on political issues in the broad sense of the word and
it once again requested the Government to refrain from interfering in the
ZCTU's trade union activities. The Committee was particularly concerned that
the recurrent arrest and detention of trade union leaders would create an
atmosphere of intimidation and fear prejudicial to the normal development of
trade union activities. This case was listed as a serious and urgent case
that was drawn to the special attention of the Governing Body.

213. Case No. 2313 was filed by the ICFTU in 2003 and concerned further
allegations of intimidation, harassment, and arrest. It was followed up
until 2007 and listed as a serious and urgent case twice. The complainants
alleged that 165 trade union leaders were arrested, and some were seriously
assaulted, during a national protest on 8 October 2003. Twenty trade
unionists who refused to pay a fine, insisting that they had been conducting
legitimate trade union activities, were charged under the Miscellaneous
Offences Act. The complainants further alleged a series of arrests before,
during and after a nationwide protest on 18 November 2003 (the complainants
alleged 390 arrests while the Government alleged 193 arrests over two days).
The ZCTU alleged intimidation and harassment of trade union members and
leaders throughout the country, including interference by CIO operatives at
one trade union workshop and hostile questioning by ZANU-PF activists at
another.

214. The Government replied that the trade unionists were arrested on 8
October 2003 and 20 November 2003 for organizing unlawful demonstrations,
that they were all released after paying fines for breach of the POSA or
appearing in court, and that there had been no assaults.

The Government reiterated that many ZCTU officials were pursuing the
political agenda of the MDC, which aimed to remove the Government by
violence.

215. The Committee observed that these incidents were similar to those in
March 2002, discussed in previous cases, and reiterated that trade union
activities could not be restricted solely to occupational matters. Pending
additional information from both sides, the Committee recalled that the
detention of trade union members or leaders for reasons connected with their
activities constituted a serious interference with civil liberties in
general and with trade union rights in particular. Yet again, the case was
listed as a serious and urgent case.

216. In 2006, the Committee noted that the Government had not sent its
observations on further allegations of violence towards trade unionists on 8
October 2003. The Committee deplored the lack of cooperation and expressed
deep concern over the arrests, delays in the hearing of cases, and the
assaults and serious injuries. It again drew the Governing Body's special
attention to the situation.

217. Case No. 2328 was filed by the OATUU, the UNI and the ICFTU in March
2004 and considered in March 2005. The complainants alleged that Mr Lovemore
Matombo, President of the ZCTU, was dismissed on 23 January 2004 by ZimPost.
This followed his earlier suspension for disrupting a board meeting on 11
December 2003 and an alleged absence from work without official leave when
he was leading the union's delegation to the Eighth Congress of the OATUU in
Sudan.

218. The Government stated that Mr Matombo had not completed the necessary
leave application procedures before leaving for the Congress, and was
subsequently charged with misconduct.

Following a disciplinary hearing before a committee that included members of
his own trade union, he was dismissed, and the decision was appealed and
submitted to the Ministry for final consideration.

219. The Committee recalled that participation by trade unionists in
international trade union meetings was a fundamental trade union right and
that workers should enjoy adequate protection against all acts of anti-union
discrimination such as dismissal, demotion, transfer or other prejudicial
measures. 132 It considered further information in 2006 and 2007, at which
time appeals to the Labour Court were still pending.

220. Case No. 2365 was filed by the ICFTU in July 2004 and concerned further
allegations of harassment, intimidation, arrests and detentions, and
arbitrary dismissals and transfers. The case was considered serious and
urgent in 2005, 2006 and 2007.

221. The complainants alleged that on 17 February 2004 four trade unionists
were detained by police in Bulawayo; on 4 March 2004 the President of the
Zimbabwe Union of Journalists was dismissed after having addressed workers;
on 25 March 2004 the car of the Secretary General of the Progressive
Teachers' Union of Zimbabwe (PTUZ) was tailed and hit; on 27 March 2004 a
group of 50 people besieged and vandalized the home of the Secretary General
of the Zimbabwe Construction and Allied Workers' Union, and forced his wife
and three children to march at gunpoint to a nearby hospital; and in April
2004 the Vice-Chairman of the ZCTU Chegutu district was transferred from his
workplace in Chegutu to Harare on account of his "clandestine involvement in
political activities".

222. The Government replied to each allegation, variously stating that the
trade union officials should have followed the normal channels of appeal,
that the allegations were unfounded or unconnected with their trade union
position, and that it could not interfere in matters between workers and
their employers.

223. The Committee requested reinstatement of any trade unionists found to
have been dismissed for anti-union reasons and reiterated its concern that
an absolute prohibition on trade unions engaging in political activities
seemed to be recurrent. The Committee observed that these allegations
followed similar events in March 2002, December 2002 and October-November
2003, expressed its deep concern with the extreme seriousness of the general
trade union climate in Zimbabwe and called the Governing Body's special
attention to it.

224. The ICFTU presented further allegations relating to events from June
2004 to February 2005 that were considered by the Committee in June 2005.
135 These allegations concerned arrests of trade union leaders throughout
the country on different occasions; court cases against trade unionists and
the imposition of fines; the dismissal and suspension of striking workers
and trade unionists involved in demonstrations; the deployment of armed
personnel during a telecommunications strike in October 2004; and harassment
and intimidation of strikers and union leadership. Finally, there were
allegations that the Government had interfered in the visit by a trade union
delegation from South Africa to Zimbabwe, culminating in its expulsion from
the country on 26 October 2004, and that a further Congress of South African
Trade Unions delegation was turned away at the border on 2 February 2005.

225. The Government refuted the allegations. In relation to the allegations
concerning the deportation of international trade unionists, the Government
emphasized its right to determine its immigration policies and laws which
trade union membership could not circumvent.

226. The Committee repeated its earlier comments concerning the need for
rapid judgments in the case of unionists who had allegedly been dismissed
for strike action. It considered that visits by other trade union movements
in the region represented a normal trade union activity and, while subject
to national legislation, must be based on objective criteria and be free of
antiunion discrimination. In 2006, the Committee deplored the fact that the
Government had failed to take action to redress the violations.

227. In 2007, the Committee examined additional information referring to
intimidation, harassment and violence against trade union officials and
trade unionists during the period from February 2005 to September 2006. It
was informed that some charges against trade union leaders had been
withdrawn or dismissed for lack of evidence. One set of new allegations
concerned interference by the authorities in the union's international
cooperation activities and governmental interference in ZCTU affairs in an
attempt to oust the union's leadership through internal conflicts in 2005.
Other allegations concerned a police raid on ZCTU headquarters on 13 May
2005 during which financial documents were searched and files, computer
disks, cheque books and foreign currency were seized. In November 2005, the
Government started an investigation into alleged financial misconduct and
breaches of the ZCTU constitution, allegedly based on the complaints of
affiliate members who had been suspended in the earlier internal conflict.
On 8 August 2006, the ZCTU Secretary General was interrogated by the serious
fraud section of the Criminal Investigation Department on account of his
responsibility for illegal foreign currency exchange as signatory to ZCTU
bank accounts.

228. Other allegations concerned the arrest, detention, intimidation and
harassment of trade unionists in 2005-06, including death threats,
disruption of ZCTU meetings by police, the alleged dismissal from TelOne of
1,254 workers for taking part in a strike on 6 October 2004, and the
confiscation of flyers in a police raid. One particular set of allegations
concerned a 13 September 2006 demonstration which was largely prevented from
proceeding following the arrest or detention of 265 trade union officials
and members around the country. There was heavy police and army involvement;
other trade union officials and members were interrogated or intimidated;
and ZCTU officials were seriously beaten.

229. The Government replied to each allegation, repeating to a large extent
its previous comments concerning the political nature of many ZCTU
activities and declining an ILO high-level direct contacts mission.

230. The Committee requested the Government to drop charges against those
arrested and to ensure that no charges under the POSA were pending against
trade unionists; to instigate an investigation into the alleged beatings at
police stations and into the disruptions and assaults that allegedly
occurred within the internal ZCTU conflict; to provide details of the
outcome of financial investigations; to review legislation; and reconsider
its request for a direct contacts mission. Once again, Zimbabwe was listed
as a serious and urgent case calling for the Governing Body's special
attention.

II. Committee of Experts

A. Application of Convention No. 98

231. Following ratification of Convention No. 98 in 1998 and its entry into
force in Zimbabwe one year later, the Committee of Experts examined the
Government's first report and the relevant national legislation at its 2000
session. On that occasion and at its two subsequent sessions, in 2001 and
2002, the Committee of Experts addressed concerns involving insufficient
legislative protection against acts of interference in trade union affairs,
restrictive legislative provisions in respect of collective bargaining and
the issue of the coverage of public servants.

232. In particular, the Committee of Experts noted that sections 7, 8 and 9
of the Labour Relations Act did not ensure comprehensive and specific
protection against acts of interference. It invited the Government to enact
provisions pursuant to section 10(1) of the Act, which empowered the
Minister to prescribe, by statutory instruments, acts or omissions
constituting unfair labour practices by employers, employees, workers'
committees or trade unions, in order to guarantee the application of Article
2 of the Convention.

233. With regard to the application of Article 4 of the Convention, the
Committee of Experts noted that sections 98, 99, 100, 106 and 107 of the
Labour Relations Act granted the labour authorities the power to refer
disputes in the context of collective bargaining to compulsory arbitration
whenever they considered it appropriate. The Committee of Experts recalled
that compulsory arbitration could only be imposed with respect to public
servants engaged in the administration of the State and those working in an
essential service in the strict sense of the term, meaning those services
the interruption of which would endanger the life, personal safety or health
of the whole or part of the population, and in the case of an acute national
crisis. Accordingly, it requested the Government to amend these sections.

234. The Committee of Experts also considered that section 17(2) of the
Labour Relations Act, which provided that regulations made by the Minister
prevailed over any agreement or arrangement, as well as section 22 of the
Act, which stated that the Minister may, by statutory instrument, fix a
maximum wage and the maximum amount payable by way of benefits, allowances,
bonuses or increments, further limited the parties' right to collective
bargaining. It asked the Government to take measures to amend them.

235. Furthermore, the Committee of Experts requested the Government to amend
sections 25(2), 79 and 81 of the Labour Relations Act, which required that
collective agreements be submitted for ministerial approval in order to
ensure that their provisions were not inconsistent with the national and
international labour law and were not inequitable to consumers, to members
of the public generally or to any other party to the collective bargaining
agreement, so as to ensure that the power of the authorities to refuse the
approval was limited to cases of procedural flaws or inconformity with the
minimum standards laid down by general labour legislation.

236. The Committee of Experts also considered that section 25(1) of the
Labour Relations Act was not conducive to the promotion of collective
bargaining as it allowed direct settlements and agreements signed between an
employer and the representatives of a group of non-unionized workers, even
when a union existed in the undertaking. Once again, the Committee of
Experts requested the Government to amend the provision.

237. Finally, while noting the Government's statement that teachers and
nurses negotiated collective agreements, the Committee of Experts requested
the Government to take the necessary measures to ensure that the right to
collective bargaining was granted to all public servants with the sole
possible exception of those engaged in the administration of the State. In
particular, the Committee of Experts requested the Government to ensure that
prison staff and employees engaged in the framework of the Lotteries Act,
excluded by the Public Servants Act, enjoyed the right to organize and
bargain collectively.

238. At its 2003 session, the Committee of Experts noted the adoption by
Zimbabwe of the Labour Relations Amendment Act (No. 17/2002) and Statutory
Instrument 131/2003. It noted with satisfaction that under the new
legislation, certain issues it had previously raised were resolved. In
particular, Statutory Instrument 131/2003 prohibited acts of interference by
employers in trade union organizations and provided for sanctions such as
fines and/or imprisonment in cases of infringement; new section 93(5) of the
Labour Act made compulsory arbitration possible only with the agreement of
the parties concerned or when conciliation procedures had failed in the
essential services; and section 2A(3) explicitly stated that the Labour Act
prevailed over any legislation, including the Public Service Act. The
consequence of the latter was to ensure that workers engaged in the
framework of the Lotteries Act and other categories of workers mentioned in
section 14(c) and (h) of the Public Service Act were governed by the Labour
Act and enjoyed the rights provided for in the Convention.

239. However, prison staff, being members of a disciplined force, were
excluded from the Public Service Act and from the Labour Act (section
3(2)(b) and 3(5)(a)) and therefore continued to be deprived of rights
guaranteed by the Convention. The Committee of Experts therefore again
considered that the Government should amend its legislation so as to ensure
that prison workers enjoyed the right to organize and to bargain
collectively.

240. With regard to the need for ministerial approval of collective
agreements and the right of the Minister to fix a maximum wage and other
conditions of employment by statutory instrument, the Committee of Experts
noted the Government's statement concerning the need to protect consumers
and the general public and reiterated its request for legislative amendment.
It once again requested the Government to amend section 25(1) of the Labour
Act so as to ensure that when a union existed in the undertaking, even if it
represented less than 50 per cent of employees, it enjoyed bargaining
rights.

241. At its 2004 session, the Committee of Experts noted the Government's
indication that new legislation would be promulgated by June 2005 and
recalled all previously raised issues. At its 2006 session, the Committee of
Experts noted with interest that the following provisions of the Labour Act
were repealed by the Labour Amendment Bill, 2005: a requirement for
collective agreements to be submitted for ministerial approval in order to
ensure that their provisions were equitable to consumers, to members of the
public generally or to any other party to the collective bargaining
agreement (paragraph (b) common to sections 25(2), 79(2) and 81(1)); and the
power of the Minister to fix a maximum wage and the maximum amount that may
be payable by way of benefits, allowances, bonuses or increments by
statutory instrument prevailing over any agreement or arrangement (section
22). The Committee of Experts, however, stressed the need to repeal
paragraph (c), common to sections 25(2), 79(2) and 81(1) of the Labour Act,
which subjected collective agreements to ministerial approval on the ground
that the agreement was or became unreasonable or unfair, having regard to
the respective rights of the parties.

242. Noting the ongoing labour law reform, the Committee of Experts drew the
attention of the Government to the need to amend section 25(1) of the Labour
Act in relation to the direct settlements between employers and
non-unionized workers and to ensure the application of the rights provided
for by the Convention to prison workers.

B. Application of Convention No. 87

243. Following the ratification of Convention No. 87 in April 2004 and its
entry into force in the country on 9 April 2005, the Committee of Experts
examined the Government's first report at its November 2005 session.

244. At this and its subsequent sessions, the Committee of Experts expressed
its concern at the use of the POSA and, in particular, Part IV on public
gatherings, to impose sanctions on trade unionists for conducting strikes,
protests, demonstrations or other public gatherings. While noting the
Government's statements that the POSA did not apply to the activities of
trade unions and employers' organizations, in light of the Committee on
Freedom of Association's conclusions in Cases Nos 2313 and 2365, the
Committee of Experts felt compelled to stress that the development of the
trade union movement and the increasing recognition of its role as a social
partner in its own right meant that workers' organizations must be able to
voice their opinions on political issues in the broad sense of the term and,
in particular, to express their views publicly on a government's economic
and social policy. It therefore requested the Government to take measures to
ensure that the POSA was not used to infringe the right of workers'
organizations to express their views on the Government's economic and social
policy.

245. The Committee of Experts raised the following legislative points with
regard to the Labour Act. First, its stressed the need to ensure the right
to organize in the prison service, excluded from the scope of application of
the Act by virtue of its sections 2, 3(2)(b) and 5(a).

Additionally, in relation to the application of Article 2 of the Convention,
the Committee of Experts requested the Government to provide information in
respect of the fact that while, pursuant to section 36(1) of the Act, the
Registrar can refuse an application for registration of a trade union or
employers' organization or federation, the legislation did not provide for
grounds on which such a refusal could be based.

246. Second, in relation to application of Article 3 of the Convention, the
Committee of Experts expressed concern at the power of the Minister to
supervise the election of officers of a trade union or employers'
organization and to set aside any such election (section 51 of the Labour
Act); and to regulate trade union dues as well as such matters as staff who
may be employed by trade unions, their salaries and allowances, and the
equipment and property that may be purchased by trade unions (sections
28(2), 54(2) and (3) and 55 of the Act). Furthermore, it noted that under
the terms of section 120(2) of the Act, an investigator appointed by the
Minister had powers to enter premises at reasonable times and without prior
notice (paragraph (a)); to question any person employed on the premises
(paragraph (b)); and to inspect, make copies of and take extracts from any
books, records or other documents on the premises (paragraph (c)). The
Committee of Experts considered that this section gave rise to two different
sets of problems from the standpoint of freedom of association. In the first
place, the Committee of Experts recalled that the right of the inviolability
of trade union premises necessarily implied that the public authorities may
not insist on entering such premises without prior authorization or without
having obtained a legal warrant to do so and any search of trade union
premises, or of unionists' homes, without a court order, constituted an
extremely serious infringement of freedom of association. In addition, the
Committee of Experts considered that the control exercised by the public
authorities over trade union finances should not normally exceed the
obligation to submit periodic reports. The discretionary right of the
authorities to carry out inspections and request information at any time
entailed a danger of interference in the internal administration of trade
unions. The Committee of Experts considered that measures of administrative
control over trade union assets, such as financial audits and
investigations, should be applied only in exceptional cases, when justified
by grave circumstances (for instance, presumed irregularities in the annual
statement or irregularities reported by members of the organization), in
order to avoid any discrimination between one trade union and another and to
preclude the danger of excessive intervention by the authorities which might
hamper a union's exercise of the right to organize its administration
freely, and also to avoid harmful and perhaps unjustified publicity or the
disclosure of information which might be confidential. Consequently, the
Committee of Experts considered that the powers of supervision contained in
the abovementioned sections of the Labour Act were excessive and asked the
Government to take the necessary measures to amend them so as to ensure the
right of workers' and employers' organizations to organize their
administration without interference by the public authorities.

247. Third, with regard to the right to strike, the Committee of Experts
requested the Government to delete reference to the power of the Minister to
declare a service essential and thus prohibit the exercise of the right to
strike in section 103 of the Labour Act. It also requested the Government to
amend section 104(3)(e) of the Act so as to ensure that when a vote by
workers was required in order to call a strike, account was taken only of
the votes cast.

248. The Committee of Experts also expressed its concern at the
disproportionate penalties which could be imposed for strikes and therefore
requested the Government to amend sections 109 and 112 of the Labour Act,
which established excessive sanctions, including possible imprisonment for
up to five years of individuals engaged in an unlawful collective action,
and section 107 of the Act conferring the power on the Labour Court to
dismiss an individual engaged in such action and to suspend or rescind the
registration of the trade union involved in such action.

249. At its 2006 session, the Committee of Experts had before it comments
provided by the Government on most of the points raised previously. On the
issue of registration, the Government explained that the Registrar could
refuse an application for registration on the following grounds: (1) the
organization had no constitution or its constitution fails to meet the
requirements; (2) there was no proof of membership; (3) the leadership had a
known and proven track record of illegal conduct; (4) there was no proof of
a grouping (i.e. minutes of a congress); and (5) there were credible
objections submitted during accreditation proceedings from stakeholders and
existing trade unions in the particular industry indicating serious
implications for the interests of workers in general. The Government added
that transparency of the registration procedure was ensured by section 40(4)
of the Labour Act, which required the Registrar to indicate the reasons for
the suspension of registration of the trade union and provided for a right
to appeal to the Labour Court against the Registrar's decision. In this
respect, the Committee of Experts requested the Government to provide
further information on the requirements to be met in a trade union
constitution for registration purposes, to clarify the meaning of "credible
objections by stakeholders and existing trade unions" and to provide
examples, if any, of the denial of registration on that ground. The
Committee of Experts also noted the Government's indication that the
registration of trade unions or employers' organizations was not compulsory
and that they could exist and perform their functions without being
registered.

250. The Committee of Experts further noted the Government's explanation of
the application of section 51 of the Labour Act empowering the Minister to
supervise the election of officers of trade unions or employers'
organizations. According to the Government, those who supervised elections
merely observed that the procedure and conduct of elections were followed in
terms of the established rules and constitution of the trade union
concerned. The Committee of Experts nevertheless pointed out that the
autonomy of organizations could be effectively guaranteed only if their
members had the right to elect their representatives in full freedom. It
considered that legislative provisions, which enabled the public authorities
to interfere in the election procedure, were contrary to the principles of
freedom of association and therefore requested the Government to amend
section 51 so as to ensure the right of employers' and workers'
organizations to elect their representatives in full freedom and without
interference from the authorities.

251. With regard to section 55 of the Labour Act, while the Government
explained that this section was intended to protect the interests of workers
against the pegging of unsustainable trade union dues, the Committee of
Experts was bound to recall that problems of compatibility with the
Convention arose when the law gave authorities powers to specify the amount
of dues members should pay to their organizations and the proportion of dues
that had to be paid to federations. The Committee of Experts further
recalled that the freedom of employers' and workers' organizations to
organize their administration implied that these organizations should be
able to dispose of all their fixed and movable assets unhindered and it once
again requested the Government to take the necessary measures to amend
sections 28(2), 54(2) and (3) and 55 of the Act. The Committee of Experts
also once again requested the Government to amend section 120(2) concerning
the powers of an investigator appointed by the Minister to investigate a
trade union or a federation of trade unions.

252. With regard to the power of the Minister to declare any service
essential (section 102 of the Labour Act), the Committee of Experts noted
the Government's indication that in terms of section 102(b), the Minister
could declare a service essential after consultations with a tripartite
advisory council. In the Government's opinion, this ensured that employers'
and workers' views and aspirations were considered. The Committee of Experts
pointed out, however, that essential services were only those the
interruption of which would endanger the life, personal safety or health of
the whole or part of the population and therefore asked the Government once
again to amend section 102 of the Act so as to bring it into conformity with
the Convention.

253. With regard to the issue concerning the strike vote (section 104(3)(e)
of the Act), the Committee of Experts noted the Government's indication that
in practice account was taken only of the votes cast.

254. With regard to excessive sanctions provided for by the legislation in
the case of the organization of unlawful collective actions (sections 107,
109 and 112 of the Act), the Committee of Experts noted the Government's
statement that the Labour Act penalized unlawful collective action just as
much as any other law penalized criminal conduct. An unlawful collective
action was an action not permitted in law, hence such conduct should be
discouraged. The Government further indicated that the desirability of a
particular penalty or its legitimacy rested with the courts of law as, in
some cases, unlawful job actions resulted in injury to, or death of,
innocent people. The Committee of Experts emphasized that all penalties in
respect of illegitimate actions linked to strikes should be proportionate to
the offence or fault committed and the authorities should not have recourse
to measures of imprisonment for the mere fact of organizing or participating
in a peaceful strike.

Furthermore, concerning the sanctions of dismissal and dissolution, the
Committee of Experts recalled that no one should be penalized for carrying
out or attempting to carry out a legitimate strike and that, in any case,
the sanctions imposed should not be disproportionate to the seriousness of
the violations. Therefore, the Committee once again asked the Government to
amend sections 109 and 112 of the Labour Act so as to bring it into
conformity with Articles 3 and 10 of the Convention.

Part IV.

Information on the factual matters investigated by the Commission

255. This Part of the report contains an analysis of the information
considered by the Commission. The information received directly by the
Commission includes communications and documentation submitted by the
complainants, the Government, the national workers' and employers'
organizations, and by the international workers' organization, as well as
written and oral information gathered during its missions to Zimbabwe in May
and August 2009.

256. The chapters contained in this Part are organized thematically, in
relation to the allegations made to the Commission. It commences with an
overview addressing the allegation that the violations of Conventions Nos 87
and 98 were systematic.

11. The systematic and systemic nature of problems in the implementation of
trade union rights

257. The Commission received allegations that an orchestrated campaign had
been waged against the trade union movement amounting to a systematic
violation of the freedom of association Conventions throughout the country,
in every sector, over a large number of years and in relation to trade union
leaders and members. 138 The allegations also claimed violations of civil
liberties. Most of the allegations concerned events that occurred before the
establishment of the inclusive Government, although the Commission received
submissions that the systematic campaign had not been abandoned and had been
used sporadically in recent months.

258. Many of the interlocutors whom the Commission met during its mission
alleged a lack of rule of law and democratic governance in Zimbabwe which
particularly impacted upon freedom of association and collective bargaining
rights. Allegations were made concerning a failure to respect civil
liberties and human rights, thus giving rise to a context in which,
according to the complainants, trade union rights could not be freely
exercised. The ZCTU asserted that the labour court system provided no
protection for trade union or human rights.

259. The Commission received much information concerning the excessive
involvement of the police and intelligence services in every aspect of trade
union life. First, the police insisted on permission being requested, and on
being present at, almost all trade union events. Second, trade unionists
alleged the systematic use of violence, arrests and detention by the
security forces as a form of intimidation. In this regard, a legal
practitioner spoke to the Commission of an exceedingly high acquittal rate
in relation to the hundreds of arrests of trade union leaders and members
over the past ten years. Often trade unionists were arrested and detained,
to be released some time afterwards without being charged. He indicated that
no one had been convicted of any crime despite the many detentions, thus
evidencing a campaign against the ZCTU that was not based on criminal
actions on the part of union members, but was aimed at punishing trade union
membership and activism.

260. Many of the interlocutors whom the Commission met described a personal
effect on them of what they perceived to be systematic targeting on account
of their trade union membership:

The two events [detentions in relation to demonstrations on 28 August 2003
and 13 September 2006] made me angry because the people who arrested me had
no reason to assault us ... After all we had demonstrated during broad
daylight and everybody who was there were all well-known residents ... I can
only conclude that the assault was only intended to punish or intimidate us.
I felt frustrated by the two events. I felt violated by the assault at the
hands of the police. I also felt dehumanized and disenfranchised; an alien
in my own country. I had lost my basic freedoms due to the incarceration.
There was nothing that I could 138 The complaints from the Workers' and
Employers' delegates submitted under Article 26 refer to trade unionists
being "systematically arrested, detained, harassed and intimidated" and
claim that the POSA and Criminal Law "have been systematically used to
repress basic civil liberties and trade union rights".

I also felt exposed and vulnerable because the apparatus that I believed
should have been protecting my basic rights was being used to assault them.

261. Most officials and individuals whom the Commission met, including
government officials, the employers' organization, both trade union
formations and civil society organizations, explained that the ZCTU was
perceived to be linked to the MDC political party. This perception caused a
belief among the authorities that the union's actions were political in
nature and not true trade union activities. ZCTU members asserted that,
although the ZCTU facilitated the formation of the MDC in 1999 and many of
its members were members or supporters of the MDC, ZCTU actions always had a
true trade union motivation. The ZCTU had declared that it "shall jealously
maintain its identity, autonomy and independent class position in as far as
it relates to affiliation to party politics", stressing that its members,
officials and staff have the right to participate on an individual basis in
party politics of their choice, but "shall not attempt to bring into the
ZCTU their political party's influence, orientation, policies, disciplines
and priorities, etc."

262. Trade union officials and members often contended that the police was
controlled from outside the police force and that they felt unsafe on
account of the perception that the Central Intelligence Organization (CIO)
was "everywhere". It was explained to the Commission that the CIO was a
non-uniformed intelligence force with branches throughout the country and
operatives believed to be in many, if not all, workplaces, organizations and
meeting places. A number of trade union members asserted to the Commission
that the CIO and police acted together in the context of links between the
ZANU-PF political party, the Government and its officials, the police and
the CIO. Trade unionists believed that the police was pervasive and that the
CIO was even more powerful. It was claimed many times that, as the CIO
reported directly to the President of Zimbabwe, who was also the leader of
the ZANU-PF political party, trade unionists had the impression that
violence, harassment and discrimination against them had been sanctioned by
the highest powers in the country. 146 For that reason, there was nowhere
for them to turn to have the breaches of their rights remedied. Members of
the public service Apex Council stated that the intelligence services, the
police and army were politicized and that they felt that there was "no one
to protect you".

263. On occasion, armed police and the army fired upon and killed
demonstrators.

264. It was further explained that the concerted campaign against the ZCTU
and its affiliates was also being waged in the media. Media reports often
described the ZCTU as a political force.

The Commission was provided with reports from the state-run print and
television media that persistently attacked the ZCTU and its leaders.
Certain trade unionists claimed that the intimidation against them had
included threats that false reports would be written about them in the local
or national media.

265. Allegations relating to the systematic violation of freedom of
association fell into a number of categories. The extent of the interaction
between these aspects resulted in a perception by the complainants of a
systematic lack of protection of their rights. The first group of
allegations concerned allegedly routine infringements of the right to strike
and demonstrate. The second group concerned the widespread arrests,
detentions, assaults and torture of trade union officials and members. The
third group of allegations concerned the intimidation and harassment of
trade unions and their members and, in particular, of teachers, farm workers
and the business community. The fourth group concerned an alleged pattern of
interference in trade union affairs and anti-union discrimination. The fifth
group concerned lapses in collective bargaining and social dialogue, and the
sixth group concerned a failure in the institutional protection of trade
union rights. In addition, the Commission heard statements concerning
attempts at a healing and reconciliation process in Zimbabwe.

266. Each of these sets of issues is addressed in the ten following
chapters. As it was alleged that arrests, detentions and violence related to
demonstrations and other trade union events amounted to intimidation,
harassment and torture of trade unionists and interference with trade union
activities, they are discussed in more than one chapter.

12. Freedom of demonstration and assembly and the right to strike

267. The Constitution of Zimbabwe guarantees freedom of association and
assembly. The right of workers to undertake collective industrial action,
and the procedure to be followed, is regulated by the Zimbabwean Labour Act.
Meetings and demonstrations in Zimbabwe fall within the purview of the
general public order statute, the Public Order and Security Act (POSA), and
the criminal law.

268. The approach of the authorities to the right to demonstrate and strike
in Zimbabwe allegedly breached workers' and employers' rights to freedom
from interference and arbitrary arrest and detention and amounted to a form
of intimidation and harassment, as will be discussed in detail in Chapters
15-20 of this report.

I. Freedom of demonstration and assembly

269. The complainants alleged systematic infringements of freedom of
assembly and demonstration over the past ten years, often in relation to the
implementation of the POSA. It was made known to the Commission that section
24 of the POSA required organizers of "public gatherings" to notify the
police of those events except, inter alia, in relation to public gatherings
"held by a registered trade union for bona fide trade union purpose for the
conduct of business in accordance with the Labour Relations Act". 160 The
ZCTU and Attorney-General both noted that in law the POSA explicitly did not
apply to trade union gatherings for trade union - rather than political -
purposes.

270. The ZCTU further stated that while they understood that their events,
as trade union activities, did not require permission from the police under
the POSA, as a matter of courtesy ZCTU officials uniformly advised the
police of forthcoming events including national, regional and local
meetings, stay-aways and marches. The police had either denied permission
for such events to occur; granted permission for them to go ahead, on the
proviso that certain conditions were followed; or obstructed them even when
permission was granted without the attachment of any conditions.

271. The Attorney-General expressed his surprise that trade unionists had
been prosecuted under the POSA and suggested that possibly the police had
mistakenly believed that the organizations were not trade unions, or that
people had pretended to be trade unionists when in reality they were not. In
this connection, it was explained to the Commission that the general
perception that the ZCTU was linked to the MDC meant that ZCTU activities
were considered by the authorities not to be bona fide trade union events,
but to be political in nature.

272. A Deputy Attorney-General explained that trade union meetings did not
require permission from the police, in comparison with protests and marches
outside trade union premises in public places, for which permission should
be sought. The Ombudsperson noted that not all marchers were trade unionists
and pointed out the State's obligation to ensure security. In relation to
the alleged excessive violence when policing demonstrations, the
Co-Ministers of Home Affairs emphasized that Zimbabwe had a well-trained
police force and, if anything, problems were not the fault of the police but
of the "political order" in the country. They welcomed ILO support for
further training, noting that police officers currently received training in
the policing of demonstrations and civil liberties. 164 The Ombudsperson
indicated that the Government would not refuse ILO technical assistance to
teach workers how to conduct demonstrations and the police in how to deal
with demonstrations.

273. The Attorney-General said that a recent amendment to the POSA moved the
onus onto the authority to show cause why a gathering should not go ahead.
166 The Ombudsperson advised that trade unions should appeal to the High
Court against police decisions not to allow trade union demonstrations. This
would require unions to file requests to the police sufficiently in advance
of the proposed event.

274. The Co-Ministers of Home Affairs, responsible for the POSA, noted that
since the establishment of the inclusive Government they had clarified
through the press the legal procedure to be followed if people wanted to
express themselves through demonstration. The Permanent Secretary stated
that the problem with the POSA was that it was not sufficiently understood;
the police must be informed of a demonstration rather than permission being
sought, as the duty of the police was to protect both demonstrators and the
general public. With regard to the suggestion that the POSA be repealed or
modified, a Co-Minister considered that the POSA should stay, but perhaps
not in its present form. He explained that steps were being taken to modify
the law to give people more space and freedom, indicating that new draft
legislation would be presented to Parliament when it reconvened.

275. One of the two factions of the ZFTU indicated that they had no problems
in relation to police permission for demonstrations and gatherings. Unlike
the ZCTU, they chose to shift their demonstrations to grounds outside
Harare, as indicated by the police, and so their events were able to proceed
without problems.

A. The socio-economic component of events

276. During the past ten years, in the context of the economic crisis in
Zimbabwe, the ZCTU voiced demands of a social and economic nature through
its activities. For example, the ZCTU organized nationwide stay-aways and
demonstrations against the rampant inflation which made negotiated wages and
salaries worthless; the cost of public transport and basic commodities,
which impacted upon the worth of members' salaries; the availability of
antiretroviral drugs; and taxation. The ZCTU explained that these were
socio-economic issues considered by workers to be of the utmost importance
in relation to their employment and that human rights issues and
socio-economic policy fell within trade union purview. Members of EMCOZ
explained that in many instances, employers supported these stay-aways and
demonstrations, recognizing that, due to socio-economic factors, the
salaries that they paid workers were worth significantly less than they had
been at the time they had been negotiated.

277. Government officials indicated that such stay-aways were considered to
exceed traditional trade union topics for protests. The ZCTU stated to the
Commission that such demonstrations were incorrectly deemed to be attempts
to change the political leadership in Zimbabwe and that it was accused of
fighting for regime change rather than being concerned with policies with a
bearing on industrial relations.

B. Nationwide events

278. The ZCTU complained about the authorities' response to a series of
nationwide stay-aways and demonstrations it had organized. It provided the
Commission with information that security forces had prevented
demonstrations from taking place, or had stopped them once they had started,
through violence, intimidation, harassment, arrest and detention of trade
unionists.

279. Trade unionists from around the country and from various economic
sectors told the Commission of police intervention either before or during
events organized by the ZCTU:

?? On 18 November 2003, as trade unionists gathered in centres preparing to
start a nationwide protest about the prices of basic commodities, the police
arrested and detained a number of ZCTU leaders and members.

?? In November 2005, another nationwide demonstration called by the ZCTU was
prevented from taking place as the police arrested 37 trade unionists in
Mutare and 119 activists in Harare who had gathered to start the march.

?? On 13 September 2006, during a protest against poverty and high taxes, a
large number of trade unionists were arrested, detained and assaulted in
about nine locations throughout the country.

?? In relation to stay-aways planned for 3-4 April 2007 and 19-20 September
2007, a number of ZCTU officials and members were arrested and harassed
beforehand and campaign material was confiscated.

?? On 3 December 2008, during a protest against cash withdrawal limits when
petitions were handed to branches of the Reserve Bank of Zimbabwe, a number
of officials and members were arrested or assaulted in Harare (15
detentions), Kariba (five detentions), Karoi (four detentions), Gweru (32-35
detentions), Zvishvane (six detentions), Chipinge (28 detentions) and
Bulawayo (seven detentions).

280. One ZCTU member from Bulawayo told the Commission that since 2003, at
every event organized by the ZCTU, he had been held, and had slept, in
prison. Another trade unionist from Mutare told the Commission that every
ZCTU activity that he had organized had been disturbed by the security
forces. A ZCTU member from a rural area stated that CIO operatives had
harassed and detained him whenever he was involved with organizing ZCTU
events, calling him an MDC activist even though he was not a member, let
alone a leader, of the MDC.

281. A number of trade unionists alleged that they had often been arrested,
detained or harassed immediately prior to ZCTU events. A trade unionist from
Gweru stated that in the past eight years, every time that there was a
ZCTU-organized event, union leaders were targeted by police prior to the
action by being picked up from their homes very late at night on the day
before the action, or early in the morning on the day of the action. On 23
April 2003, for example, prior to a planned demonstration against high
taxes, union leaders were picked up by the CIO from the union office in
Gweru and detained for five hours. Prior to a planned action on the economic
meltdown in November 2004, union leaders in Gweru were picked up from their
homes and detained at the central police station for a number of hours. The
union won an appeal to the Magistrates' Court against the police decision to
deny permission for a Women's Day event in 2008.

C. May Day celebrations

282. The Commission also heard evidence about the authorities' hostile
attitude towards various events to mark May Day around Zimbabwe.

283. In Harare, the ZCTU General Secretary was arrested in 2007 and again in
2008 when, together with the ZCTU President, he was charged with an attempt
to overthrow the elected government in relation to their May Day speeches.
ZCTU officials explained that the 2009 May Day event in Harare had proceeded
without incident, but that the union had been required to apply for
permission and the Minister of Labour had to intervene for permission to be
granted.

284. A ZCTU committee member from Rusape stated to the Commission that local
May Day celebrations had been unable to go ahead in 2007 and 2008. In
relation to the 2008 events, the Commission was provided with a letter from
the district police, dated 1 May 2008, in which the union was "advised that
the commemorations are likely to incite acts of violence" and that there was
no "capacity to provide security during the commemorations because police
officers are deployed elsewhere"; for that reason, it was "recommended" that
the commemorations be cancelled. Other trade unionists indicated that they
had been detained at the district police station on that day, when the
letter was handed to them and they were told that the police did not want
the ZCTU in town. 185 The Commission was advised that in 2009, May Day
commemorations in Rusape had been able to go ahead and approximately 400
people had participated.

285. A trade unionist from Chitungwiza stated that preparation for May Day
in 2006 had been interrupted by the police and in 2007 by ZANU-PF militia.
In 2009, a May Day march had initially been denied by the police on the
grounds that it was short of staff but, following an urgent application
filed by ZCTU lawyers, the event was allowed at the last minute.

D. Other events

286. The Commission was informed of numerous other protests, marches,
demonstrations and gatherings organized by the ZCTU and its affiliates which
had been disrupted by security forces or vigilante groups.

287. A ZCTU regional officer indicated that at an event jointly organized by
the ZCTU and the National Social Security Authority to commemorate World
Health Day on 28 April 2005, the police had detained the ZCTU members in a
vehicle for two hours; when the National Social Security Authority
leadership had cancelled the event as the ZCTU colleagues could not
participate, the police had released the ZCTU members from custody. On 1
December 2005, during a World AIDS Day march in which ZCTU members joined
members of other organizations in Harare, the police prevented those with
ZCTU banners from taking part. A trade unionist from the sugar industry
trade union, a ZCTU affiliate, indicated that the police had denied
permission for a commemoration of National Human Rights Day on 10 December
2006 in Gweru. 190 The Commission was advised that, on an International
Women's Day march in Bulawayo on 7 March 2009, the police had arrested all
those present and detained them for three hours.

288. A member of a teachers' trade union informed the Commission that every
time his union attempted to celebrate World Teachers' Day, the army, the CIO
and the police would intervene and the leaders would be arrested. 192 For
example, on 6 October 2006, at the beginning of a World Teachers' Day event
in Masvingo, about which the police had been notified in advance, more than
300 riot police had come to the ZCTU offices and detained the leadership for
the entire time planned for the event so that it could not take place. The
Commission was provided with a copy of a letter from the Masvingo central
district police, dated 2 October 2008, advising that a World Teachers' Day
procession was prohibited as the PTUZ notice dated 17 September 2008 had not
been received by the police seven days in advance of the march; the letter
informed the organizers "that if you decide to go ahead, Police will arrest
the participants".

289. Following its mission to Zimbabwe, the Commission was informed that a
commemoration of the 13 September 2006 violence against the ZCTU had been
planned in Harare on 12 September 2009. After notifying the police of its
intention to hold the commemoration in a shopping centre, the southern
district police advised the ZCTU that it was unable to sanction the
commemoration as the police had no capacity to cover the event. A High Court
order subsequently declared that the event could go ahead. The Commission
was informed that on the morning of 12 September 2009, police officers
dispersed the participants and detained three trade union members for two
hours before releasing them without charge.

290. The Commission was further advised that on 8 November 2009 the ZCTU
President and four ZCTU officials were arrested in Victoria Falls, and
detained for four days in police cells, during the first event on a tour of
the country to meet ZCTU affiliates.

II. Strikes

291. The Commission noted that provisions relating to the right to strike
were contained in the Labour Act. Most notably, section 104 of the Act
stated that "all employees, workers committees and trade unions shall have
the right to resort to collective job action to resolve disputes of
 interest" and included procedural requirements of 14 days' written notice,
an attempt for conciliation, and a secret ballot confirming the agreement of
the majority of the employees.

292. The complainants alleged that the right to strike in Zimbabwe was
subject to certain significant restrictions. First, strike was prohibited in
essential services which, pursuant to the law, included a large number of
workers. 197 Second, members of the Apex Council and PTUZ advised the
Commission that, pursuant to the Public Service Act, public servants did not
enjoy the right to strike and industrial action was illegal. 198 The
Attorney-General noted that the basic labour rights of public servants were
not protected under the law to the same extent as other workers in relation
to matters such as strike. He indicated that since 1997 public service
workers had the right to demand negotiation and compulsory arbitration from
the Government without going on strike, but that this had never been
exercised.

293. Many interlocutors stated to the Commission that the right to strike
did not exist in practice. Senior labour lawyers whom the Commission met
indicated that reform of section 104 of the Labour Act relating to strikes
may be desirable as judges had never declared a strike to be legal under
this section. They explained that should a dispute not be resolved through
conciliation, the Labour Court could decide that the collective job action
was either legal or illegal following the purely procedural provisions of
the Labour Act. If dismissals occurred in relation to a lawful strike, the
Court would order reinstatement or damages instead of reinstatement and, in
the case of an illegal job action, the Court would issue a disposal order
stipulating certain measures against the workers. One expert observed that
employers capitalized on the fact that employees "did not want to follow the
procedures for strike" in the Labour Act, usually dismissing most or all of
the strikers and targeting members of the workers' committee. He noted that
if the strike was illegal, then the dismissals would be considered fair by
the Court.

294. EMCOZ indicated that some strikes in Zimbabwe were organized by civil
society and the ZCTU on topics such as high taxes and cash withdrawal
limits. In terms of strikes under the Labour Act, members of EMCOZ also
asserted that, in Zimbabwe, "it was literally impossible to engage in a
lawful strike".

295. ZCTU officials reaffirmed that it was rare for a strike to be
considered legal in Zimbabwe. A member of a ZCTU affiliate in the clothing
and textile industry noted that there was a practical problem with the
requirement for unions to call a secret ballot supervised by labour
officers, as there were few labour officers; the cumbersome and lengthy
process was exploited by employers. He also noted that sections 104-111 of
the Labour Act contained civil and criminal sanctions against workers and
trade unions in the case of an illegal strike.

296. The Commission was provided with details on the following strikes that
had taken place in Zimbabwe in recent years and which had been treated by
the authorities in a hostile manner.

297. Following protracted wage negotiations in the clothing industry
throughout Zimbabwe, workers staged a spontaneous collective job action in
July 1997, which was declared illegal by the Ministry of Labour. The
Commission received evidence that more than 13,000 workers were dismissed,
some of whom were later reinstated on short-term contracts. By 6 October
2003, various judgments of the Labour Court had found that the dismissals
were unlawful, but reinstatement was no longer feasible for all workers. An
award of damages was agreed by the company on 16 October 2003 in lieu of
reinstatement and an order was issued to that effect. A 2008 Labour Court
decision concerning the quantification of those damages held that the
calculation of damages should be based on the workers' salary in 2003 and
not adjusted to 2007 levels. As a result, the workers were entitled to what
amounted to $0 at current rates because of the devaluation of the local
currency.

298. The Commission was informed of a strike by 4,000 workers at the
Zimbabwe Iron and Steel Company (ZISCO) in Kwekwe on 7-8 August 2001. The
striking workers gathered peacefully on the company premises with the police
present to monitor the situation. On 8 August, armed riot police and the
army appeared and fired tear gas and workers started running. The army and
police indiscriminately fired shots, as a result of which two workers were
killed on the spot, another 1-2 workers died later from their injuries, and
22 workers were injured by gunshot, tear gas or beatings. In a judgment of
the High Court delivered on 17 May 2006, the Court "accepted that the
workers were peaceful and the soldiers and police unjustifiably aggressive
in the use of excessive and unwarranted force in dealing with the workers".
The Court ordered the payment of damages for unlawful death which have
reportedly not been paid to date.

299. A former teacher informed the Commission that, during industrial action
organized by the PTUZ in 2002, he was abducted at gunpoint, blindfolded and
detained in a car for three hours, after which he was instructed to
telephone a colleague and call off the industrial action.

Nevertheless, the trade unionist and his colleagues continued to mobilize
others and did not call off the strike. He was arrested in October 2002,
detained in custody for one night, and charged under the POSA that he had
instigated teachers to rise and overthrow the Government. From then on, he
was obliged to appear in Court every two months until 2005, when he was
acquitted.

300. The Commission received written and oral information concerning three
strikes in the communications sector. In June 2004, following a strike in
NetOne in response to the employer's alleged refusal to negotiate, 56
workers were dismissed. 207 An arbitration award on 1 October 2004 and a
Labour Court decision of 7 December 2004 both ordered the reinstatement of
the workers without loss of pay. The employer obtained a temporary stay and
appealed to the Supreme Court which, in a decision delivered on 9 March
2006, overturned the two earlier orders and "declared that the dismissal of
the 56 employees was lawful".

301. The Commission was informed that 1,020 workers were dismissed from
ZimPost and 1,403 workers from TelOne following a strike for non-payment of
salary increments awarded in arbitration in October 2004. The Commission was
advised by the Secretary General of the Communications and Allied Workers'
Union, a ZCTU affiliate, that it believed that the strike was legal as they
had followed the relevant procedures, such as a secret ballot among the
members of the union, and that 14 days' notice had been given. The strike
was ended after 15 days by the intervention of armed personnel at major post
offices and telecom exchanges nationwide. A number of members of the union
were arrested and obliged to pay fines. In total, 2,479 workers were
dismissed without benefits, many of whom were women. Although many of the
dismissed workers had 10-25 years of service, they received no pensions.

302. In October 2005, the High Court in relation to TelOne, and in November
2005, the Labour Court in relation to ZimPost, held that there was no
"lawful basis upon which to dismiss the workers". Nevertheless, the workers
were not reinstated nor were damages paid. A September 2006 decision of the
Supreme Court declared the dismissals to be justified; in its May 2009
decision, the Supreme Court reached the same conclusion in relation to the
ZimPost strike.

303. The Commission was told by the ZCTU that 453 of the dismissed workers
had since died and 235-250 were unaccounted for. Several of the dismissed
workers with whom the Commission spoke during its visit to Zimbabwe
explained they had experienced divorces caused by stress, the inability to
send children to school, loss of homes and health problems. One woman told
the Commission that she had stopped taking her diabetes medication because
it was too expensive; after 26 years of service and "working so hard" she
had lost her job and could not afford anything.

304. The ZCTU believed that there was government involvement in the
decisions of the Supreme Court in the three cases in the telecommunications
industry, 217 as it had done everything to ensure that the strikes were in
conformity with the law and were legal. In all three cases in the
telecommunications industry, the Supreme Court overturned a series of
earlier decisions of the lower courts that had found the dismissals to be
unjustified which, the complainants alleged, illustrated a politicization of
the judiciary.

305. The Commission received written information and oral testimony
concerning a recent strike in the motor industry. One trade union official
from the ZCTU affiliate in the motor industry explained that on 25 February
2009, 200 workers at the Willowvale Mazda Motor Industries plant staged a
sit-in strike on the basis of the "no pay, no work" principle, as workers
had been given coupons to buy food, but had received no salary with which to
pay rent or school fees for their children. The employer closed the plant
between 9 and 13 March 2009 while it carried out an informal inquiry into
the strike, following which it suspended without pay or benefits 11 workers
on 16 March 2009. The Commission was advised that the matter was heard by
the Labour Court on 16 September 2009 and judgment was reserved. A trade
union official from the ZCTU affiliate in the motor industry explained that
the Government owned 51 percent of Mazda and many politicians were in
managerial positions in motor vehicle plants.

306. The Commission received information concerning a strike of
approximately 1,500 workers at ZIMASCO (Pvt) Ltd Kwekwe Division, a mining
company. The strike concerned occupational health and safety and the
Ministry of Labour issued a show cause order on 22 June 2009. The Labour
Court in Gweru then declared the strike to be unlawful on 2 July 2009 and
made a disposal order ordering the striking workers to return to work within
24 hours and authorizing the company to take disciplinary action. After
returning to work, the workers were subject to disciplinary hearings. The
majority of the workers were reinstated (some with warnings), but all the
trade union officials (12 individuals) and the entire workers' committee (11
individuals) were dismissed. These workers were awaiting judgment in an
appeal against the dismissals.

307. The Commission was informed of a strike in the Shabanie Mine in
Zvishavane that commenced on 31 August 2009 in response to the alleged
non-payment of workers' salaries since January 2009. On 25 September 2009,
the strikers expected to meet the company management, but instead riot
police "holding teargas canisters and branding AK 47 rifles ... ordered the
workers to disperse". One worker was beaten with a gun and shot in his hand
and leg after inquiring about the absence of the enterprise management. Tear
gas was thrown at the sitting workers and two further workers were injured
by shots that were fired as they fled.

308. The Commission was informed that the injured workers were kept under
police guard in hospital. When their lawyer attempted to visit them on that
day, police officers arrested him and later released him without charge.
Over 50 workers were arrested and detained at the police station on 25
September, 12 of whom spent the weekend in police cells before being taken
to court and charged with public violence on 28 September 2009. The
Magistrates' Court released them on bail and ordered the police not to
harass those in hospital.

309. On 29 September 2009, armed police officers, CIO operatives and
security guards from the mines allegedly went to the workers' residences and
ordered them to return to work the following day under threat of eviction
from company houses. Approximately 75 percent of the workers returned to
work the next day at gunpoint. Eight workers were dismissed by the
management on the grounds of being absent from work without leave, defying
the general manager's memorandum to return to work and being part of an
illegal work stoppage. Police officers allegedly went to the home of the
secretary of the Zvishvane district ZCTU and warned him not to meet the
striking mine workers.

13. Arrests, detentions, assaults and torture

310. The Commission heard stories of arrest, detention, assault and torture
from many ZCTU officials and members whom it met in Zimbabwe. It heard
statements from trade unionists who had been detained for periods of time
varying from a few hours to a few weeks and who described violence by the
security forces in many cases of arrests, detentions or abductions. Most
incidents occurred within the context of planned or actual demonstrations,
and others allegedly occurred as forms of harassment. The Commission was
told that in urban centres trade unionists were arrested during the protests
and demonstrations, while in rural areas of the country the trade unionists
were often detained in the lead-up to events, to prevent them taking place.
In some instances, trade union leaders were arrested on their own or in
small groups, and at other times ZCTU nationwide actions resulted in
nationwide mass arrests. The Commission received information alleging mass
arrests and detention, and often assaults, in connection with nationwide
demonstrations on 22-23 April 2003, 8 November 2005, 13 September 2006, 3-4
April 2007, 19-20 September 2007, 3 September 2008, and 3 December 2008. 228

I. Conditions in detention

311. The Commission was informed that after being arrested on account of
trade union activities, many trade unionists were detained without charge,
or prior to being charged, in police holding cells. It heard a number of
statements concerning trade union members' experience of conditions in those
holding cells, some of which amounted to torture.

312. The Commission was provided with a copy of a decision of the Zimbabwean
Supreme Court relating to the detention of the Secretary General of the ZCTU
at Matapi police station in December 2002. In that case, the Supreme Court
was called upon to consider an application brought, inter alia, by the
Secretary General of the ZCTU in relation to the conditions in police cells
at Matapi police station in Harare. The leading judgment, to which the other
members of the Court adhered, held: I have no doubt, in my mind, that the
holding cell that the court inspected ... does not comply with elementary
norms of human decency, let alone, comply with internationally accepted
minimum standards. In particular, the failure:

(a) to screen the toilet facility from the rest of the cell to enable
inmates to relieve themselves in private;

(b) to provide a toilet flushing mechanism from within the cell;

(c) to provide toilet paper;

(d) to provide a wash-basin; and

(e) to provide a sitting platform or bench;

313. In view of this finding, the Supreme Court directed the Minister of
Home Affairs and the Commissioner of Police to take immediate measures to
ensure that the police station cells in question had toilets that were
screened off from the living area, with flushing mechanisms from within the
cells, wash-basins and toilet paper.

314. In relation to detentions both before and after that judgment, trade
union officials and members from throughout the country described police
holding cells and prisons within which they were detained varyingly as
"horrible", "inhumane", "filthy", "smelly", "unhygienic" and "pathetic".

315. More than one trade unionist indicated that prisoners in Zimbabwe
detention centres and prisons could not expect food and so, in the case of
those trade union members and officials who were moved around police
stations so that their families and organizations could not find them, they
experienced "starvation on top of the other torture". Other workers
indicated to the Commission that they were not allowed to have access to
lawyers or their medications. A ZCTU lawyer stated that it had often been
necessary to obtain court orders allowing access to detained ZCTU members so
as to be able to provide legal advice. ZCTU lawyers further stated that they
had themselves been harassed and intimidated by security forces by being
threatened, pushed, or followed after having visited detained trade
unionists.

II. Nationwide events 2003-05

316. The Commission was informed of arrests and detentions during this
period and in particular in relation to ZCTU-organized nationwide events
from 22 to 23 April 2003 and on 8 November 2005.

317. One trade union member stated that he had been detained in April 2003,
when he had first spent three days at one police station, before being
transferred at midnight on the third day to another with one colleague,
while his other four colleagues were transferred to two further police
stations in the district. After another two days, he was again transferred.
The worker explained to the Commission that rural police cells had no water
and that they were transferred around police stations so that the ZCTU and
their relatives could not find them. As a result, there was no one to
provide them with food. The Commission was informed that charges against him
were dropped once he appeared in court.

318. A ZCTU regional officer provided the Commission with details of six
detentions in police cells between 2003 and 2004, during which he had been
subjected to violence and humiliation.

These detentions were all in the context of the preparation for planned
stay-aways, including being picked up while distributing flyers or from home
in the early hours of the morning.

319. The Commission received much information relating to the mass arrests
and detentions of trade union leaders following a demonstration on 8
November 2005 calling for economic and political reforms relating to high
taxation. A ZCTU regional officer stated that he was one of six workers
arrested in Chinhoyi the night before the 8 November 2005 event, in what the
police law and order branch termed as "preventive detention" as they were
not formally charged. They were released in the evening after the
demonstration was due to have ended.

320. It was alleged that 37 trade unionists were arrested in Mutare and 116
were arrested in Harare as they gathered to start a march on 8 November
2005. A ZCTU regional official stated that he was one of the 116 workers
arrested and taken to Harare central police station. At 7 p.m., the police
moved the detainees in one vehicle to Chitungwiza police station, where they
were detained for four days in "filthy cells" that, as they were too crowded
for people to be able to sit, they had to stand up day and night. He
explained to the Commission that the cell had no functioning toilet, just
one bucket for the detainees to share even though it was difficult for them
to move through the cell to the bucket. As the bucket was not emptied, there
was overflowing human waste in the cell. He indicated that on the third day
the workers were taken in groups of six to seven to different holding cells
which had even worse conditions, with no water and no food. During the
detention, the HIV-positive detainees were refused access to their
medications; detainees were interrogated one by one and threatened. The
Commission was advised that the trade unionists were released at 5 p.m. on
11 November 2005.

III. Nationwide demonstration, 13 September 2006

321. The Commission was informed of particular violence by security forces
associated with the ZCTU-organized nationwide demonstration on 13 September
2006. 238 It was alleged that in Harare 14 trade union officials were
arrested and transported in a truck that was so overcrowded that many
suffered injuries on the way to the Matapi holding cell. Once there, the
trade unionists were taken into cells two at a time to be beaten by five
police officers for 20-45 minutes.

322. Many trade unionists mentioned that they had seen the ZCTU President,
who had been in the first group, coming out bleeding and weeping. He stated
"I never thought that I was going to survive". 240 The ZCTU President
described the incident as "excruciatingly painful for him" and a medical
report listed bruising, a fractured finger and anaemia secondary to injury.

323. The Commission heard a harrowing statement of the assault and torture
of the Secretary General of the ZCTU. He stated that he had lost
consciousness after he had been beaten until the next morning when he woke
to find himself soaked in blood, and was only admitted to hospital with the
rest of the group 24 hours after the beatings; the trade unionists were only
treated another 12 hours later. A medical report listed fractures to his
wrist and hand, a laceration to his scalp and bruising. 243 The Commission
was told that the injury to his wrist and hand had resulted in permanent
damage.

324. Many trade unionists indicated that, as they had received medical
treatment late, they had experienced permanent health problems. One trade
unionist stated that he had been beaten on the soles of his feet and since
then had not been able to wear closed shoes. He stated that he needed
painkillers with him at all times and was disabled for life.

325. Other trade unionists were arrested and beaten in approximately eight
other locations throughout the country during the 13 September 2006
demonstration. An official from Mutare indicated that he had been
interrogated for most of the day at the charge office about the
demonstration, during which time he had not been allowed food or water and
had been "poked with sticks". His lawyer had been told by the police that he
and his colleagues would be released without charge after the interrogation.
Another trade union member asserted that the police had threatened him by
saying "we are not trained to write dockets, we are trained to kill" when
they detained and assaulted him.

326. The Commission was provided with 14 medical and psychological reports
from the estimated 83 workers arrested and detained on that date in Chegutu,
Chinhoyi, Chitungwiza, Gweru, Harare, Hwange, Kwekwe, Rusape and Victoria
Falls. These medical reports detailed injuries such as fractures,
lacerations, bruises, swelling and blood loss leading to anaemia. Many of
the medical evaluations described the "possibility of permanent injury" as
"likely"

and the "amount of force likely to have been used" as "moderate" to "severe".
Some trade unionists were diagnosed with post-traumatic stress disorder,
depression and anxiety, on the basis of observed nightmares, poor
concentration, difficulty in controlling their temper, irritability and
memory flashbacks.

IV. Nationwide stay-aways, April and September 2007

327. The Commission was informed of further arrests in relation to the April
and September 2007 stay-aways. One ZCTU official stated that the police had
arrested, detained and beaten workers who had taken part in the April
stay-away, before releasing them to their workplace. A ZCTU organizer
indicated that he had been beaten as he distributed flyers for the stay-away
on 19-20 September 2007 and was then detained by police for three nights. He
was charged under the criminal law with public nuisance, but the case was
dismissed on summons.

V. Nationwide demonstration, 3 December 2008

328. The Commission was provided with many statements concerning arrests and
detentions in connection with a ZCTU-organized nationwide demonstration on 3
December 2008 called to protest against limits on the amount of cash that
could be withdrawn from banks. It was estimated that there had been
approximately 97 arrests or detentions in at least six locations throughout
the country.

329. A ZCTU district chairperson informed the Commission that when he was
arrested during the demonstration, as the trade union leader in the group,
he had been taken to the high officers in the security forces - the
officer-in-charge of the police, the CIO, and an army general - who verbally
abused him for two hours while he argued that the event had not been
political.

330. A trade union official from Gweru indicated that he had been detained
with 30 other detainees in one prison cell when he was arrested following
the 3 December 2008 protest. He stated that the overcrowding was even more
acute as this was during the cholera outbreak in the country. A member of
the PTUZ stated that he had been held in a police cell together with eight
other detainees, with only two blankets between them. The Commission was
provided with a medical report relating to one trade unionist who was
injured while running away from riot police, and another two medical reports
of serious blunt force trauma during the demonstration on that day.

331. Another trade union official indicated that he had been arrested on 3
December 2008 by masked riot police, who had pushed with their batons and
kicked the workers to get them into the truck. After remaining from 8.45
a.m. to 5 p.m. without any food or a docket being issued, he was taken to a
police cell. The rules implemented by the police were that detainees had to
relinquish their mobile telephones, shoes, socks, and all except one layer
of clothing. He stated that there were 18 people in one small cell, which
was so overcrowded that it was not possible for people to sit down and they
therefore had all to remain standing. According to him, there were smelly
and lice-filled blankets on the floor and no ventilation; "no one could hear
our complaints". He stated that at midnight, by which time people had
started vomiting, he had been moved to a different cell with a
non-functioning toilet. He remained in the cells from 3 to 8 December 2008.
During that time he was interrogated by law and order police, who threatened
him that he would be made to disappear, and stamped on his feet. On 8
December, after appearing in court, he was bailed and since then he has
appeared in court 17 times with the case still not finalized. 258

VI. Impact on women

332. The police rule that detainees could wear only one layer of clothing
had a particular impact on women. The Commission heard a statement from a
trade union official that she was detained for one week in 2004, when she
was left in one layer of clothes despite the cold weather and lack of
heating in the cells. Another trade unionist stated that she had been
detained for four days in a police cell in March 2003 wearing only a bra and
trousers. Yet another trade union member from the rural sector indicated
that she had been made to take off her underwear in the cells by a male
police officer.

333. Another woman indicated that during a six-day detention in police cells
following a demonstration on 3 December 2008, she and a colleague had their
menstrual periods and were denied sanitary pads or water to wash. During the
same incident, another woman who was arrested with a child whom she was
breastfeeding was detained in the charge office for one night, together with
the child.

334. One woman stated that she had been detained for three hours in March
2009 after an International Women's Day celebration, during which she had
not been allowed to use the toilet or given water with which to take her
medication; she was released without charge.

335. The Commission was further informed of the one-night detention of the
wives of 22 mineworkers from the ZIMASCO mine on 15 January 2007, who had
been protesting against their husbands' salaries. Some of the detained women
were pregnant or had small babies.

VII. Mistreatment in custody

336. In addition to the above examples, trade union leaders and members
indicated particular instances when they had been mistreated while in
custody.

337. Many workers stated to the Commission that they had been beaten during
interrogations. A number of trade unionists explained that they had been
beaten on the soles of their feet, with wooden bats from the colonial
period, sjamboks or batons, and still experienced problems with walking or
wearing shoes. The Commission received a medical report relating to one
trade unionist detained in November 2004 providing evidence of blunt force
trauma on his body, including the soles of his feet; a psychiatric
examination diagnosed post-traumatic stress disorder and panic attacks,
concluding that "it is the psychiatrist's opinion that his symptoms and
clinical condition can be attributed to the torture".

338. Some trade unionists asserted that they had been interrogated at
gunpoint and others noted that they had been interrogated in the middle of
the night. Certain workers claimed that they had received death threats, or
had been subjected to treatment designed to humiliate them.

VIII. Detention and assault by the Central Intelligence Organization (CIO)

339. Many trade unionists stated to the Commission that they had been the
subject of particular violence by CIO operatives. The Commission was
provided with information concerning a campaign of harassment and
intimidation against a trade union official from Rusape by two CIO
operatives. The official indicated that he had been harassed or picked up by
those CIO operatives on 11 September 2006, 4 March 2007, 25 June 2008, 9
March 2009 and 4 May 2009. As a result, he had obtained a Magistrates' Court's
order restraining the two named CIO operatives "from harassing assaulting or
threatening to assault the applicant and from interfering with applicant's
trade union activities and work" for a period of 12 months from 20 May 2009.

IX. Recent allegations

340. The Commission received information concerning arrests, detentions and
assaults of trade union officials and members in September and November
2009, following its mission to the country. It was informed that three trade
unionists had been detained for two hours during a demonstration on 12
September 2009, and that the ZCTU President and four ZCTU officials had been
arrested during a trade union meeting on 8 November 2009 in the Victoria
Falls district and detained for four days. In both instances, the trade
unionists were released without charge.

X. Other statements

341. One of the two factions of the ZFTU indicated that there had been no
arrests of its members, but that it was aware of arrests of ZCTU members.
276 The other faction of the ZFTU did not deny that there was violence
during economic difficulties and especially during presidential elections,
but stated that the violence was not directed against workers but was
between political parties. The ZFTU, unlike the ZCTU, was apolitical and
therefore its members did not suffer.

342. The EMCOZ indicated that it was aware of arrests of ZCTU members and
further noted that not less than 1,000 employers had been arrested for
breach of price control regulations in the same period.

343. During meetings in May and August 2009, the Co-Ministers of Home
Affairs indicated to the Commission of Inquiry that wrongdoings on the part
of the police had been related to the situation that had existed in the
country, which was now in a transition to something new, and that there had
been no fresh incidents. 279 It was noted that recent guidelines established
by the Co-Ministers of Home Affairs would, if followed, ensure that the
tension between the police and citizens would disappear. One Co-Minister
acknowledged a sense of fear of the security forces that would take some
time to remedy. The Ministry considered that the CIO should be on board in
the process. The police were already reaching out to the people to explain
the role of the security forces.

344. The Acting Deputy Commissioner for Prisons indicated to the Commission
that the prisons service did not divide the prison population so as to
distinguish trade union prisoners from other prisoners. He explained that
the two types of prisoners in Zimbabwe were the 75 percent convicted
prisoners and the 25 per cent awaiting trial, often for a period of two
years. Once a sentence was handed down by the Court, all prisoners were
treated the same. He stated that food, sanitation, clothing and bedding for
prisoners had all been a problem for economic reasons and, that between 2008
and March 2009, conditions in prisons were "appalling". With no food in the
country, food rations for prisons had diminished. He indicated that the
prisons service still experienced problems when no money was received from
the central government, and so relied on the support of the Red Cross and
local church organizations.

14. Intimidation and harassment

345. The complainants alleged wide-scale intimidation and harassment of
trade unionists over a period of years. It was alleged that a pattern of
arrest, detention, violence and torture by the security forces was used as a
method of intimidation and harassment against trade unionists in the
country. The Commission heard statements illustrating that such a pattern of
intimidation and harassment had resulted in fear on the part of trade
unionists, interfering with their ability to carry out their trade union
activities. The Commission was told of severe physical and psychological
harm, including torture, inflicted on trade union officials and members and
their families throughout Zimbabwe.

I. A pattern of intimidation and harassment

346. The Commission heard from rank and file members of the ZCTU that they
had been targeted by the authorities on account of their trade union
membership and activities. Many individual workers made statements such as
"all we wanted to do was to hand a petition over", seemingly confused as to
why the weight of the authorities had been directed at them. One union
official indicated that she had been picked up in April 2008 by a group of
CIO operatives and police officers who had accused her of being a rebel
wanting to overthrow the Government; she stated "I thought it was a joke on
their approach, but later to discover they were really serious about it".

347. Other trade union leaders were clear in their statements that anything
they did was seen as political and so was targeted. ZCTU leaders argued that
the authorities attacked those fighting for democracy, who were seen as
anti-government in the context of a highly polarized society. The ZCTU
believed that what had happened was based on the perception that it was the
"archenemy of the State" and its involvement in the establishment of the
then opposition MDC party. Many of the trade unionists whom the Commission
met indicated that intimidation and harassment intensified in connection
with ZCTU-organized nationwide demonstrations and during election periods in
the country, as all ZCTU members were treated as being MDC supporters.

348. Many individuals whom the Commission met signalled the involvement of
the CIO and ZANU-PF militia and officials, as well as the police,
particularly in rural areas. One trade union official indicated that while
the police would beat any trade unionist, the CIO targeted the leadership. A
worker whom the Commission met explained that, for example, the local Member
of Parliament in Rusape was an important ZANU-PF figure and at times had
assembled people and threatened them in the presence of the police and CIO,
thus emphasizing the links between ZANU-PF, the CIO and the police in the
town. II. Trade union leadership

349. Many allegations of serious harassment and intimidation concerned
identifiable members of the trade union leadership. It was explained to the
Commission that governmental authorities considered many of the trade union
leaders to be political figures, rather than true trade union leaders. The
ZCTU President further stated that CIO operatives had humiliated him at
every International Labour Conference in Geneva that he had attended, except
for that in 2009, through public manhandling and questioning. He noted that
in 2005, the Government refused to include him in the Zimbabwe delegation to
the Conference paid for by the Government, and arrested him; after being
released, he had attended the Conference for its last two weeks, paid for by
the international trade unions.

350. Regional ZCTU leaders and leaders of ZCTU affiliates also provided the
Commission with details of alleged systematic harassment and intimidation.
The Secretary General of one regional ZCTU branch indicated to the
Commission that at every trade union activity the trade union leaders were
targeted, as their names were kept in files. He stated that the leadership
would be picked up very late at night from their homes, or taken early on
the day of the action. A worker representative from Bulawayo explained how
during his detention in connection with the 3 December 2008 demonstrations,
CIO operatives had taken photographs and profiles of him and his colleagues,
and had warned that they could make them disappear. He indicated that he was
fearful as the security forces had said that they would come to his house if
further ZCTU activities were organized.

III. Effect on trade union members

351. Individual trade union members from throughout the country spoke of a
strong sense of fear, of being unsafe and victimized, and an overriding
threat of violence and harassment. A number of times the Commission heard
statements such as "you could disappear in Zimbabwe", "some of our
colleagues have died", and "my life is not secure, I am always vigilant".
Members of the public service told the Commission they had been
 "traumatized".

352. The Commission was told by one trade unionist, who had been detained
for three days in March 2004, that he was still haunted by the time that a
police superintendent asked him "if we kill you, who should we advise?"; he
had answered his wife. In relation to harassment by the CIO during the 2008
election run-offs, a trade union official stated to the Commission that
"during these days, people in Rusape were being killed so I was worried that
it was the end of my life". A ZCTU district chairperson informed the
Commission that, after his release from detention in December 2008, CIO
operatives had come to his home and told him to leave the ZCTU. A trade
union member who had been the first person beaten by the police with baton
sticks during the 3 December 2008 demonstration in Harare stated that she
had been too afraid to go at the front of demonstrations since then.

353. Other workers talked of being publicly identified and humiliated. A
trade unionist from the farm workers' union explained that she had felt
humiliated when, during a search of her house in 2003, police officers had
handcuffed her and had blown their car horn to attract her family and
neighbours. Another trade union member recounted that on the one occasion
when he had been arrested, the law and order division of the local police
had taken his photograph and included it in a poster that was still on
display at the station with the heading "Most notorious people in the
district".

354. Another ZCTU leader indicated that she had been arrested in 2006 in
front of her child. After spending the night at Gweru police station, she
was taken to Harare Central police station in the morning in leg irons and
handcuffs by public bus in a six-and-a-half hour journey. She stated that
she was humiliated because people had spoken about her to the police
officers as a criminal. After five minutes in court, the warrant to arrest
was declared null and her release was ordered. The Commission was informed
that after receiving a court order preventing those people from harassing
her, the police had guarded her for some time before refusing to enforce

the court order because she was an MDC member.

355. Two workers, from Karoi and Kariba, stated that during detentions at
police stations on 3 December 2008, although they had not been beaten
themselves, they had felt frightened. One indicated that he had been made to
take his shoes off and had been shown weapons; the other stated that he had
been made to sit with his legs out in front of him and had been threatened.
Another trade unionist stated that the day after a trade union official had
been beaten in police custody, another committee member handed in his
resignation to the police, rather than to the trade union. As everyone knew
what had happened in their small town it was very difficult to replace the
committee member.

IV. Rural areas

356. Some workers indicated that in rural areas the intimidation and
harassment of ZCTU members was particularly strong. A number of workers in
rural areas indicated to the Commission that their homes and property had
been destroyed and that they, with their families, had been forced to flee
their communities after harassment and intimidation.

357. The Commission heard the statement of a member of the ZCTU from Gwenzi
who explained that on 18 January 2002 her husband, a ZCTU regional
chairperson and town council worker, had been abducted and beaten up before
being returned to the home at 2 a.m. The next morning, some workers from the
Ministry of Construction, on orders from the District Administrator, came to
the house and removed roofing sheets, threw all possessions into the street
(including clothing and furniture) and stated that her husband should leave
the house. The family had lived in the open for one week, with their
possessions being rained on, before she went to their rural home with their
children while her husband remained behind. On 18 April 2002, her husband
died. She indicated that, together with her five children, she was being
supported by donor agencies and was destitute, without a home, property or
money to send the children to school.

358. One worker described a series of "troubles with the CIO" he had
experienced since his election as chairperson of a rural ZCTU sub-district
in 2006. He indicated that two days before the 2006 nationwide demonstration
CIO operatives had thrown detergent at him and made froth on his head at the
local police station and threatened him by making him take his shoes off.
Because of fear of the CIO operatives, three members of the ZCTU committee
had resigned after having witnessed what had happened to him.

359. A trade unionist indicated that ZANU-PF and war veterans had held open
meetings in March and April 2008 in which he was discussed and then told to
leave the area because he had influenced people in the elections. After his
landlord had been threatened, he had been given seven days' notice to leave
his accommodation. He indicated that he had been stranded with nowhere to go
and had to be assisted to relocate.

360. Another trade union official stated that she had received anonymous
telephone calls and felt watched. After she had been out of town on ZCTU
business, callers had asked her "how many did you recruit this time?" She
stated that, when she had gone to the CIO to confront them about the
continual intimidation, they confirmed that they had all her contact
details.

V. Medical attention

361. The Commission was informed that victims of violence required a police
order before they could be examined and treated by a medical doctor. In some
cases, trade unionists indicated that hospital doctors refused to treat
victims of "political violence" or had been warned not to treat individuals
who had been beaten by ZANU-PF militia. One trade unionist indicated that
she had been obliged to pay an administrative admission-of-guilt fine to the
police as a condition for receiving an order for treatment. A number of
trade unionists indicated that they had been examined, but had not received
treatment immediately; instead they had been given painkillers. As a result,
some trade unionists who had been subjected to violence at the hands of the
authorities or ZANU-PF militia alleged that they had experienced
long-lasting or permanent damage to their health that would not otherwise
have occurred.

VI. ZCTU nationwide demonstrations

362. Many workers indicated that the pattern of intimidation and harassment
had been heightened immediately before or during ZCTU-organized nationwide
demonstrations. One trade union official indicated that the CIO had
approached him when he was organizing ZCTU activities and did not otherwise
harass him.

363. The Commission received significant statements concerning the effect of
the widespread arrests and detentions in connection with the 13 September
2006 nationwide demonstration. In addition to the severe physical and
psychological harm recognized by medical and psychologist reports produced
in 2006, it appeared that many trade unionists continued to suffer physical
and emotional effects three years later in 2009.

364. One trade unionist stated that since being detained for five days, he
would no longer go out at night alone and he was always concerned about who
was following him. He stated that it had traumatized his entire family, and
his wife had asked him to stop his ZCTU activities.

Another trade union official stated: To make matters worse the reports which
were coming from government-owned media which is accessible to the majority
of the people in the country were contrary to what was happening. It gave
the impression that we were bad people who had been caught trying to topple
the Government ... This left me confused, before this I had a strong feeling
of being protected. Now it's different. Now whenever I meet a member of the
Zimbabwe Republic Police in uniform who shows signs of aggression I become
filled with unreasonable fear. I quickly associate that with what happened
on 13 September.

365. The secretary of a ZCTU district committee indicated to the Commission
that he had been accosted at his home at 2.30 a.m. on 13 September 2006 by
four plain-clothed police officers, who woke his wife and three-year-old
child, as well as all the neighbours, asking why he had distributed ZCTU
flyers that day. He stated that he had been dragged by the throat,
threatened and kicked, and his house was searched. His employer was
threatened and told that he was employing someone who wanted to topple the
government. The union official was subsequently demoted and he stated that
he was "living in fear that he will be dismissed".

VII. Intimidation and harassment by ZANU-PF militia

366. A number of trade unionists noted that they had been detained on
ZANU-PF premises or beaten by youths in ZANU-PF regalia, who had often
assumed a link between ZCTU membership and MDC sympathies. Notably, a
teacher allegedly died after her health deteriorated following a severe
beating on ZANU-PF premises in February 2008.

367. One trade unionist indicated that he had needed 30 days' sick leave
after being beaten by ZANU-PF militia on account of his ZCTU membership. As
a result of fears for his safety, he stated that he had moved towns and was
working in a lower grade job.

368. Two ZCTU members stated that during a civic education activity in
January 2002 they had been beaten by 15 ZANU-PF youths, with open hands,
boots and an assortment of weapons. One of the members indicated that the
police had "just stood by" as they were beaten. They claimed that they were
then marched 20 kilometres into the countryside near a deserted wildlife
area with lions, where they had been left to sleep the night in trees. In
the morning, a police car had come and driven them to a town where they
could telephone colleagues for help. It was explained to the Commission that
they "did not report the matter to the police as we considered them as
accessories".

369. A chairperson of a commercial workers' union stated that, following the
dispersion of a demonstration in October 2003, he was driven to an area of
abandoned farms in the bush with colleagues, blindfolded with their own
shirts and made to sing ZANU-PF songs. The police had stated "today you die".
Once there, they had been made to lie face down, beaten and left. The
workers were later able to reach the main road and made contact with a
colleague in town.

370. A worker from the textile industry informed the Commission that in
February 2007, he and a friend had been approached by six to eight youths
wearing ZANU-PF T-shirts who took his ZCTU cap and trade union strategy
document, and his friend's telephone and bag. They were taken to ZANU-PF
offices, where they were threatened and beaten for 20-30 minutes.
Afterwards, they made a report at Harare central police station and returned
to the ZANU-PF offices with the police, where the youths refused to return
their possessions; when the police left, they had no choice but to follow.

371. Another worker indicated to the Commission that after "ZANU-PF guys"
had stopped the May Day 2008 event that he was involved in preparing, he had
received threats at night and was forced to leave his home.

372. The Commission received information concerning a trade unionist who was
twice beaten by men in ZANU-PF T-shirts in 2008. In May, two men broke into
her house saying that they were going to teach her a lesson because she
pretended to be ZCTU but was really MDC. Her neighbours heard her screaming
and saved her; together with the mother of one of the perpetrators, she went
to the police station where she got a docket and was able to be treated in
hospital, but the police never arrested anyone. In June, after the door of
her house had been broken down and some of her possessions stolen, she was
warned to move out. While fellow employees helped her pack, 20 men in
ZANU-PF regalia came to the house and said that they "wanted her head" as
she was mobilizing workers to vote for MDC under a ZCTU banner. She was
taken to the ZANU-PF base, placed under a cold shower, and beaten. After 12
hours at the base, she stated that she could not hear anything and had
"cried until I could cry no more". When she was released it was 2 a.m. and
she stumbled to a cousin's home in the darkness. Again, she obtained a
police docket to receive treatment after going to the main police station.
She indicated to the Commission that she still had permanent injuries, back
problems, could not read or walk, and was unable to do the work that she
used to do. She explained that her employer gave her extra leave time, as he
knew that she was only ZCTU and not MDC. She stated that she had lost
confidence, had no energy and was still fearful and traumatized that the
militia might come back and "finish me off".

373. Two trade union officials, from two different parts of the country,
indicated that they had each been arrested when they had attempted to report
to the police, in different years, that they had been beaten by ZANU-PF
militia.

VIII. Effect on families

374. Many workers informed the Commission that their families also
experienced harassment and intimidation. One trade unionist indicated to the
Commission that she had been told by the CIO that they would "get" her
family. The ZCTU President indicated that, in one incident, as he was not
there when the police arrived at his house, they had arrested his brother,
who was then beaten and detained for 48 hours before being released without
being taken to a court. Another worker was advised that if he stayed with
the ZCTU he would continue to have the same experience. This had made both
him and his family fearful.

375. A trade unionist from Mutare stated that in August 2003 he had been
beaten and arrested, firearms had been discharged and his house destroyed in
a chaotic scene that had traumatized his four-year-old daughter to such an
extent that she had hidden in the bush and it had taken them days to find
her. 331 A regional officer for the ZCTU in the western region indicated
that the effects of six detentions by the security forces in 2003-04 had
traumatized his family and induced "unnecessary fear on them, especially my
children".

376. A trade unionist from Rusape informed the Commission that, after his
employer had warned him not to remain at home one night in January 2002, his
house had been broken into, his wife beaten and his property looted by
ZANU-PF thugs. Since then, his wife was no longer able to read properly and
the whole family had been forced to leave the town from which they came.
They now had no jobs or home and could not afford to send their children to
school. He stated that his oldest children were so traumatized that they
refused to return to the town despite it being the community from which both
sides of the family came.

377. One official stated that security forces (sometimes the police,
sometimes the CIO, and sometimes both) had come to his home and had
threatened his family and maid, so that the family was also traumatized. As
he was the sole breadwinner, it was especially hard on his family on the ten
occasions that he had been arrested in the past seven years. The same
official indicated that recently his young granddaughter had said to him "it's
been seven months since you were arrested".

378. Another official said that CIO officers had drawn a swastika and the
words "leave the trade unions alone" on his house and that he had not been
allowed to clean it. He also indicated that he had been threatened at a
railway station with his wife and son, in addition to experiencing "normal
assaults, victimization and harassment" in 2005-07.

379. Another worker described the effect on him of being detained before a
march in April 2003 for which he had been on the organizing committee. He
stated that he had been detained for "five horrible days" in police cells in
which he was denied food provided by the ZCTU, water was rationed, he was
beaten during interrogation, and his wife and children did not know where he
was for the first few days. He indicated that his family were disturbed and
he did not wish to revisit the experience even by telling someone.

380. Most recently, the Commission was informed that on 3 November 2009,
armed men trying to locate the Secretary General of the General Agricultural
and Plantation Workers' Union of Zimbabwe had entered her home and
threatened her family.

IX. Recent allegations

381. Some trade union members stated that incidents of harassment and
intimidation had reduced since the formation of the inclusive Government.
For example, the president of a ZCTU affiliated organization indicated that
for many years state security officers had been assigned to him and were
often parked outside his house. He stated to the Commission that the last
time

that he had seen them was at the time the GPA was signed.

382. Despite the above, trade unionists were often still fearful and felt
threatened on the basis of their trade union membership. They made
statements such as "the police pretend to have changed" or "we still have
the same fear as they are threatening that this is not a permanent thing".
In some instances, trade union members reported recent harassment. For
example, it was alleged that on 9 April 2009 CIO officers had warned one
worker not to testify before the Commission of Inquiry and said that if he
did, they would make his life difficult through false reports in local
newspapers. On 3 June 2009, he obtained a court order requiring two named
CIO operatives to stop harassing him.

X. Other statements

383. One of the two factions of the ZFTU indicated that the violence in
Zimbabwe during elections was not directed at workers, but was between
political parties and, as the ZCTU was involved in high-level politics, it
attracted violence.

384. During meetings in May and August 2009 with the Commission of Inquiry,
the two Co-Ministers of Home Affairs indicated that, since being appointed,
they had publicly called on all parties to tell their members to desist from
violence and that, following a period of grace, anyone committing crimes
would be arrested. In addition, the Co-Ministers noted that moving forwards
required an acknowledgement of past facts: in the case of Zimbabwe's recent
history, all parties made mistakes which resulted in the police making
corresponding mistakes. They considered that all wrongdoings (both
commissions and omissions) were related to the situation that had existed in
the country. The country was now in a transition to something new and it was
necessary to give it space both to fail and to succeed.

385. The Co-Ministers of Home Affairs noted that a fundamental issue was how
the Government could gain the trust of people who had been traumatized. It
also needed to reassure them that the Government is taking steps so that
such events do not reoccur. While the Co-Ministers indicated that things had
happened in the past, they stated that there had been no fresh incidents.
They explained that they had recently established guidelines which, if
followed, would ensure that the tension between the police and citizens
would disappear. It was acknowledged that a sense of fear of the security
forces existed and that it would take some time to remedy this. The police
were already reaching out to the people.

15. Intimidation and harassment of teachers

386. Serious allegations of intimidation and harassment of teachers were
made in written statements by the complainants and in meetings that the
Commission had with teacher union leaders and teachers during its mission to
Zimbabwe. The Commission heard statements from other interlocutors
recognizing the particular intimidation of teachers. For example, the ZFTU
noted that it knew about teachers and their problems with the police, and
the Prime Minister indicated that he was aware of thousands of cases of
harassment and intimidation. The Minister of Education stated that many
teachers had been brutalized and it was necessary to restore an environment
where they could return to teaching. It was stated to the Commission that
the systematic targeting of teachers covered every aspect of their lives and
there was collusion between the police, the CIO and the Government.

I. Workers' organizations representing teachers

387. It was explained to the Commission that teachers, as members of the
public service, were denied full rights to organize and bargain collectively
pursuant to the legislation. The Minister of Education indicated that there
were three workers' organizations in the education sector: the Zimbabwe
Teachers' Association (ZIMTA), the oldest teachers' association and a member
of the Apex Council; the Progressive Teachers' Union of Zimbabwe (PTUZ), an
affiliate of the ZCTU; and another, smaller, organization called the
Teachers' Union of Zimbabwe. Despite the provisions of the law, the PTUZ was
a legally registered trade union. The Minister of Public Service indicated
that he was aware of competition between the PTUZ and ZIMTA in relation to
their representation on the Apex Council, but had refused to become
involved.

388. In terms of membership, the Commission was informed that ZIMTA had
approximately 45,000 members, while the PTUZ had approximately 12,000
members of whom approximately 5,000 joined for the first time in the months
following the establishment of the inclusive Government. The PTUZ leadership
indicated that since the inclusive Government was formed teachers were no
longer so frightened to join the PTUZ.

389. Prior to that, the PTUZ believed that lists of its members to be
victimized had existed. The PTUZ stated that it had had difficulties in
organizing teachers because head teachers, operating under orders from the
authorities, did not allow them to enter schools. The PTUZ believed that it
was regarded as a militant organization: "whatever we say, we're regarded as
MDC because the ZCTU formed the MDC". The Commission was told that the
President of Zimbabwe had specifically mentioned the PTUZ as an organization
colluding with Western nations during a speech in February 2007.

390. In the opinion of the PTUZ, ZIMTA was either a pro-government trade
union or had benefited from government support. One PTUZ official stated
that some ZIMTA membership was forced and members of their union had
experienced difficulties in revoking ZIMTA membership. ZIMTA representatives
did not accept that it was a government-sanctioned organization.

II. Personal experiences

391. The Commission heard statements from teachers from both ZIMTA and PTUZ
that they had been traumatized. Stories were recounted to the Commission of
other teachers having been flogged in front of their pupils; of teachers
having disappeared; of women teachers being forced to sit on white-hot
stones; of teachers moving away from rural areas out of fear, leaving their
possessions; of threats that they would be thrown into crocodile-infested
rivers; of schools being closed; of beatings and rapes at schools and
abductions from schools; and of at least six deaths of teachers between May
and June 2008.

A. Election periods

392. During its mission to the country, the Commission met teachers from
both the ZIMTA and PTUZ unions from throughout Zimbabwe. Many teachers
indicated to the Commission that intimidation of trade unionists during
election periods - and most particularly the presidential run-off
elections - was particularly targeted at teachers in rural areas, with one
teacher stating to the Commission that he believed that it was better not to
have elections. Another teacher stated that people lived easily together
except during election time.

393. The Minister of Education stated that teachers had been perceived to be
aligned with the political opposition during the elections, a perception
that was reinforced as they were often better educated strangers who had
transferred into the community. 358 A teacher explained to the Commission
that teachers in rural areas were victims as in small communities they had
information and knowledge and were perceived as being opposition supporters.
Another teacher stated that members of the PTUZ had been killed by ZANU-PF
supporters in rural areas because teachers in general were accused of
"turning the tables" against ZANU-PF during the presidential run-off
elections. The teacher stated that intimidation and harassment of teachers
was planned systematically because of the influence that teachers had
throughout Zimbabwe. In rural areas, one teacher stated that the only people
who could give information to the community were teachers and party leaders.
In deprived areas, it was alleged that party leaders needed only to provide
food and drink to receive support.

394. A head teacher, who emphasized that he had no political affiliations,
explained that in mid-June 2008 he had left the rural area in which he
worked as he had received threats that if he slept at his house he would not
see the next day. After having voted, despite being warned that he should
pretend to be illiterate, he stated that he had been harassed by four people
assuming that he was one of the three MDC votes cast at his polling station.
He indicated to the Commission that he had been warned recently that people
had been told to eliminate individuals like him because there would soon be
elections again. Another teacher stated that he had been assaulted and
arrested, and at one point had found a paper in his office saying "we are
watching you". Yet another teacher, with 13 years' experience, stated that
she had been harassed and had lost her job in a rural area because her
husband was an MDC politician. A teacher from Chipinge stated that he had
been harassed due to his membership of the PTUZ as it was seen as a front
for the MDC; he indicated to the Commission that as a teacher he believed
himself to be a human rights defender and so taught all political beliefs
and did not go to political rallies of either ZANU-PF or MDC.

395. ZIMTA provided statements to the Commission detailing the number of its
members affected during the presidential run-off elections between May and
June 2008 in various districts. The union provided a list of 106 teachers
throughout Zimbabwe who had been harassed in approximately 52 schools; 62
teachers who had been severely assaulted in approximately 48 schools; the
death of a head teacher in Mashonaland East; 141 teachers who had
experienced emotional harassment; and four cases of arson in Mashonaland
East and Manicaland.

396. The Commission was provided with a statement from a member of ZIMTA
from the Midlands province in which he indicated that three schools in the
province had closed down in May 2008 after ZANU-PF militia had carried out a
campaign of violence and threats against teachers during the elections,
forcing them to flee. He indicated that he had been warned to leave the area
as he was on a "hit list" and that, when the militia could not find him,
they had beaten family members and neighbours from the village.

397. Similar threats of violence, intimidation, the use of abusive hate
language, and panic among teachers were made in relation to members of ZIMTA
in Matabeleland South, including reports of "base camps" being established
in schools in seven districts and schools that had closed down as the
teachers had fled. In relation to Manicaland, the Commission received
information that at least three teachers associated with ZIMTA had their
personal properties destroyed, and that children had been caught up in the
violence either by being beaten or arrested.

398. The Commission was advised by both ZIMTA and PTUZ members that teachers
considered that the attacks on them were organized from within ZANU-PF, and
were not random. The Commission was told that this meant that friends in
rural communities were able to tell intended victims that something would
happen at a particular time, so that they could escape. One teacher
indicated that he was saved from a beating as the perpetrator was a former
student. The Commission was informed that, in another incident, a teacher
had been abducted from PTUZ premises after being warned by his headmaster
that he would be abducted that night.

399. One woman from Chimanimani indicated that she and her husband, members
of the PTUZ, had never had any involvement in the MDC. She provided copies
of affidavits signed in 2002 by her husband and a former colleague, both of
whom were teachers at village primary schools in the area, in which they
sought a magistrates' court order to stop five named respondents, all
believed to be war veterans and ZANU-PF supporters, "terrorizing and
victimizing" them. The Commission also received a copy of a letter dated 25
March 2002 from local ZANU-PF offices to the headmaster of a primary school,
referring to her husband and two colleagues by name, and advising that they
"must not report on duty" as they were supporters of the MDC. The Commission
was informed that in 2002 her husband accordingly left Chimanimani to work
as a college lecturer in Harare while she remained in the village as a
primary school teacher. During the run-off elections in 2008, she contended
that the threats against her had intensified and that on 12 July 2008 she
ran away with her children as she had been warned that there was a plan to
attack her that night; the next day, she was advised that her home and
possessions had been destroyed. She had sought a transfer from her home
village and now worked as a primary school teacher in Harare, where her
family lived in one room and, on the public service allowance that she and
her husband earned, they could not afford to send their children to school.

B. Demonstrations, strikes, meetings and commemorations

400. The Commission was told of harassment of teachers from the PTUZ in
relation to trade unionorganized demonstrations, strikes, meetings and
commemorations. For example, one trade unionist indicated that both he and
his family had been threatened and that he had been arrested and charged
under the POSA with instigating teachers to rise and overthrow the
Government in relation to the organization of a strike in 2002. The PTUZ
informed the Commission that the police had detained its leadership in
relation to commemorations of World Teachers' Day in Masvingo in 2006. One
PTUZ official stated that he had been arrested under the POSA by
plain-clothes police officers who had attended a trade union education
meeting at a school; when he asked under which section of the POSA he had
been arrested, the officers replied "all of POSA". In relation to a
term-long strike by teachers between 28 January and 2 March 2007, PTUZ
officials in Harare and Mutare were repeatedly arrested to be later released
without charge. In the context of a September 2007 strike, the PTUZ
headquarters was ransacked.

401. The Commission was told of harassment of union officials in February
2008 in the context of a PTUZ "Save our education" campaign, including the
dismissal of the union's chairperson. The Commission heard statements that
ZANU-PF militia abducted nine PTUZ members and subjected them to torture and
beatings by eight-person teams using logs and iron bars. One teacher
informed the Commission that a perpetrator had stamped on his neck. He then
mentioned "I was better off because I was a man", indicating that he had
seen perpetrators holding one of the two women's legs apart and stamping on
her genitals.

402. A trade unionist indicated that in June 2008 he had closed down a PTUZ
office and left his small town after he had received death threats from CIO
operatives. A number of teachers from Gweru, Masvingo and Bulawayo indicated
that they had been arrested and detained during the ZCTU-organized
demonstration on 3 December 2008 and had spent up to eight days in the cells
in inhuman conditions, where family members were not able to bring food to
them, before being released without charge after being taken to court. The
Commission was told that during the ZCTU-organized demonstration on cash
withdrawal limits on 3 December 2008 the only trade unionists picked up by
the police from a crowd of hundreds in Karoi were two women teachers, who
were paraded around town in a police vehicle, detained at a police station,
interrogated and then released without charge.

403. The Commission was informed that on 26 January 2009 the PTUZ had
organized an information desk with flyers and placards to explain its
year-long industrial action under its "Save our education" campaign, in
particular informing parents that there were no teachers at school. Although
the police had been advised and permission granted beforehand, on the
morning of the planned event, police and CIO operatives indicated that they
had decided to cancel the activity for security reasons and that the union
should distribute flyers only to its members; trade unionists would be held
responsible for any flyers found on the roadside or elsewhere.

404. Certain teacher union leaders provided statements to the Commission
alleging harassment and intimidation targeted against them in their
leadership capacity. The Chairperson of the PTUZ, for example, detailed
being:

?? arrested in March 2003 in Mutare, beaten, threatened that his leg would
be cut off with an axe, and then released without charge;

?? interrogated and threatened by CIO operatives at his workplace on several
occasions in 2004;

?? arrested with other leaders in Masvingo on World Teachers' Day 2006;

?? arrested and subsequently released without charge four times between
January and March 2007 in relation to the ongoing strike, and that on one of
these occasions he had been detained at a police station for three days,
assaulted by police officers, interrogated by CIO operatives, and given
blankets that had first been used to cover a non-flushing toilet;

?? suspended in April 2007 for 14 days from the university at which he
worked for allegedly destabilizing the institution and the country at large;

?? abducted by ZANU-PF militia during a PTUZ campaign on 19 February 2008
with other leaders, when he was beaten, forced to chant ZANU-PF slogans,
hospitalized under guard, and then charged with criminal nuisance;

?? dismissed from his job as a university lecturer at the Great Zimbabwe
University on 23 February 2008, while he was hospitalized due to the
beating;

?? threatened in June 2008 by youth militia and war veterans;

?? arrested and detained for five days in September 2008 without food, water
or blankets; and

?? detained and interrogated by police on the morning of the ZCTU-organized
demonstration on 3 December 2008.

405. The Chairperson of the PTUZ further informed the Commission that his
dismissal in February 2008 was subsequently found to be an unfair labour
practice by the Ministry of Labour, and that he was currently appealing to
the Labour Court against the university's decision to pay compensation
rather than reinstate him in his job. He indicated that as he was considered
to be an "academic terrorist" for organizing teachers and lecturers and was
believed to have insulted the President of Zimbabwe, he would not be able to
work in any state university as the President of Zimbabwe was Chancellor of
them all.

406. The Secretary General of the PTUZ was also a particular target for
harassment and intimidation. He had been arrested on numerous occasions
since the formation of the union, often to be released without charge within
24 hours. He had been one of the union leaders arrested on 6 October 2006 in
connection with the World Teachers' Day celebrations in Masvingo; on 14
February 2007 in Harare in relation to the industrial action that was under
way; and on 19 February 2008 by ZANU-PF militia in Harare, when the trade
unionists were seriously beaten and tortured. The Commission was informed
that he had been arrested on 15 April 2008 and charged with spreading
unsubstantiated information in newspapers concerning political violence
targeted at teachers in rural areas. On other occasions his wife had been
harassed and he had received strange telephone calls at home, and he
believed that his home had been under 24-hour surveillance.

III. Other statements

407. The Commission met the Minister of Education, who informed it that the
education sector accounted for over 50 percent of public servants, amounting
to 80,000 teachers. He stated that the difficulties in the country had
started to stabilize with the establishment of the inclusive Government. He
indicated that he enjoyed cordial and constructive relationships with all
three teachers' trade unions and, since taking office, he had activated a
National Education Advisory Board which included the presidents of the three
trade unions. Within weeks of having taken office, an agreement had been
reached on how to end the ongoing

strike by teachers. The Minister had given three major undertakings about
conditions of service, some of which were still being implemented.

408. The first undertaking was a ministerial directive exempting the
children of teachers from paying school fees in public schools as a
short-term measure until the Government was able to pay teachers a viable
salary. The Minister noted that he had introduced nominal fees for children
at urban primary schools and zero fees for children at rural primary
schools. The Minister acknowledged that the salary of teachers in Zimbabwe
was significantly below the regional average and indicated that he hoped to
increase the current payment to US$500 per month in line with the average in
1999, but that this would depend on improvements in the country's economic
situation. The Apex Council explained that teachers, like other public
servants, were being paid a monthly allowance as at August 2009 of
US$115-200. A head teacher, for example, would receive US$155 per month.
Teachers indicated to the Commission that on such allowances they were
unable to send their own children to school.

409. The second undertaking aimed to encourage the return to teaching of the
20,000 teachers who had left the profession due to economic distress or
political harassment by creating an amnesty for those teachers to avoid
cumbersome regulations for re-engagement. The amnesty was open to all
teachers who had left the profession since 1 January 2007 on the grounds of
economic distress or intimidation, although most had left during the
elections in 2008. The Minister indicated that the amnesty had encountered
problems in implementation and as a result not many teachers had yet
re-entered the profession.

410. The third undertaking aimed to address the ongoing fears of teachers in
rural areas as a result of intimidation and harassment. The Minister
indicated that he had no way of knowing whether or not the specific
allegations were true as no empirical study had been done to ascertain their
truth. In terms of dealing with the allegations of harassment, the Minister
believed that he had to take the complainants seriously and indicated that
some of the reports that he had himself received were credible. As a result,
he explained that he had released a policy directive stressing that
educational institutions should be only for educational, and not political,
purposes and that only teachers, parents and children should be on school
premises. This directive aimed to bring previously existing policy to public
attention and he hoped eventually to make the entry of school premises by
unauthorized people an offence. In this regard, the Minister indicated that
7,000 copies of the statement explaining the policy directive had been
distributed to all schools in Zimbabwe.

411. In addition, the Minister informed the Commission that he was
implementing a new human rights and civic education curriculum, teaching
democracy, tolerance and non-violence. He emphasized that the vast majority
of Zimbabweans were peace-loving people despite having experienced a tragic
history of violence and war.

16. Intimidation and harassment of farm workers

412. The Commission received written and oral statements from farm workers
and their representatives alleging particular intimidation and harassment of
rural workers. The Commission was informed that intimidation and harassment
of farm workers had occurred in connection with ZCTU-organized nationwide
events and had intensified during the election periods in the country, in
common with teachers and other trade unionists working in rural areas. In
addition, the Commission received information alleging the breach of trade
union rights in connection with the country's land reform programme. In this
regard, the Commission made it clear that it would consider the land reform
programme in Zimbabwe to the extent that it affected the trade union rights
of workers on farms.

I. Arrangement of the agricultural sector

413. The Commission received varying data concerning the agricultural
sector. According to ZCTU interlocutors, the agricultural sector, prior to
the economic crisis facing the country, had been the largest employer in
Zimbabwe, accounting for 500,000 workers employed in 4,200 commercial farms.
The Minister of Lands and Rural Development indicated that previously white
farm owners, who accounted for 1 percent of the population, had owned 15.5
million  hectares, or 45 per cent of land with good agricultural potential.
He stated that in comparison, 700,000 people were crowded onto less arable
communal land.

414. In relation to the present situation, ZCTU representatives estimated
that there were 200-400 commercial farms in Zimbabwe employing 150,000
workers. The Minister of Justice explained that there were currently 3-4
million farm workers in Zimbabwe out of a total population of 12-13 million
Zimbabweans. ZCTU interlocutors estimated that approximately 20-25 per cent
of the farm workers in Zimbabwe were women, with the largest proportion in
the horticultural sector. While it was estimated that 70 percent of farm
workers in Zimbabwe were descendents of non-native Zimbabweans, all workers
in Zimbabwe were covered by the Labour Relations Act. The Minister of
Justice indicated that these workers were entitled to citizenship.

415. The Commission was informed that the General Agriculture and Plantation
Workers' Union of Zimbabwe (GAPWUZ), a ZCTU affiliate, was the largest trade
union in the rural sector. It was alleged that there were over three unions
in the agricultural sector that were government sponsored. In 2000, GAPWUZ
had a membership of approximately 200,000 workers and had negotiated a
minimum wage that allowed farm workers to educate their children, sustain
themselves and enjoy health care. GAPWUZ representatives alleged that after
the commencement of the land reform programme in 2000, there had been
violence against the union and its members. Its current membership was
25,000 workers.

416. GAPWUZ officials stated that most of the perpetrators of the violence
in the country resided in rural areas as the political elites were the new
farm owners. This caused difficulties when trade union officials attempted
to organize workers, carry out their representation duties, or bargain
collectively. They had been threatened and described particular threats
against them when they sought to document the use of child labour at two
farms. War veterans had said to them that they must be opposition supporters
as they came from the ZCTU and that they were not therefore welcome.

II. Election periods and demonstrations

417. GAPWUZ officials and members reported having been harassed,
intimidated, verbally and physically abused or abducted by CIO operatives
and ZANU-PF militia during election periods or as they mobilized workers
during union education events. Other farm workers indicated that they had
been the victims of violence during demonstrations and protests.

418. For example, during a campaign of harassment and intimidation
associated with the ZCTU organized nationwide demonstration on 18 November
2003, a child labour specialist in the union was assaulted and her husband
kidnapped, tortured and left for dead in the bush; and the GAPWUZ offices in
Chinhoyi had been burnt down.

419. In connection with the 13 September 2006 demonstration, the Commission
was informed that a number of farm workers had been detained in cells for
two days. A trade unionist informed the Commission that, after their
release, agricultural workers had received death threats from the CIO and
ZANU-PF militia; he and colleagues ran away from their farms because they
feared for their lives. They explained that they had experienced emotional
and psychological effects from the harassment and intimidation. One union
member stated that she had been beaten on the soles of her feet and that
since then, she had not been able to wear shoes for the whole day. The trade
unionists stated that they were acquitted of the charges laid against them.
Despite the Court having ordered that the police officers responsible for
the serious assaults be investigated, this had never happened. The
Commission received a statement that since then two trade union officials
had been arrested in the run-up to elections and that they were currently
being harassed for distributing humanitarian assistance packages to
internally displaced farm workers.

420. The Commission was informed that about 34 workers at Glenara Estate had
been dismissed after attending the ZCTU May Day celebrations in 2008. It was
further stated that 105 workers from Chegutu, Kariba, Karoi and Shamva had
been forcibly evicted from their homes during the run-up to the elections,
and that there had been other incidents of forcible evictions.

421. In relation to the 3 December 2008 demonstration, another union
official indicated that two policemen had held her while another two charged
at her. The Commission was provided with a medical statement noting that her
injuries had been caused by several blunt trauma blows delivered with severe
force and that there was a serious possibility of permanent injuries. On
another occasion, a policeman had taken the same official and her
four-year-old son from church to the police station, where she was beaten
and detained. She indicated that she is now fearful of the police,
"especially those with batons", and her son refuses to go to church.

III. Land reform programme

422. Several representatives of the Government emphasized the centrality of
the issue of land to the current situation in Zimbabwe. The Minister of
Lands and Rural Development indicated that the Government's perspective was
that all black Zimbabweans were entitled to land.

423. In relation to the breach of trade union rights within the context of
the land reform programme, the Secretary General of GAPWUZ reiterated that
the union viewed "the land

reform as a good initiative to give land to those who need and use it", but
argued that the majority of farm workers had not received land and had
become unemployed and internally displaced as a result of the changes in the
rural sector. She explained that the minimum wage for farm workers in
Zimbabwe was US$10 per month plus accommodation and a food hamper. It was
estimated that 1,500 farm workers - 5,000 people including their families -
had been displaced in the past year. Many workers were living in tobacco
barns or on the roadside.

424. The Commission heard statements concerning a group of GAPWUZ members
who had worked at Wilton Farm near Mutare. The Commission was informed that
the white farm owners had employed approximately 100 workers and the new
farm owner had retained 35 of these workers after he took ownership in 2004.
All the farm workers who had another home to go to had left, leaving on the
farm only those who had no other home.

425. The Commission was told that the workers were not being paid a fixed
amount and that certain of the 35 workers on the farm had been persistent in
claiming their wages. The local GAPWUZ official informed the Commission that
it had been extremely difficult for the union to organize the workers, as
the farm owner refused the union access to the workplace, chasing the
officials off the property on the ground that he would not let MDC
supporters talk to the workers.

426. The Commission was informed that on 1 March 2009, after five years of
working for the new farm owner, a summons was served on the farm workers
informing them that on 3 March 2009 the Magistrates' Court in Mutare would
hear an application for their eviction. The farm workers were unable to
attend the court hearing as they had not been paid and so had no money for
the transport costs of getting to Mutare with two days' notice. The order
was accordingly made in their absence.

427. On 5 June 2009, various interlocutors stated to the Commission that the
new farm owner, together with police officers and an official of the Court,
arrived at the farm workers' homes and threw their belongings outside, burnt
the homes, seized farm implements, and took the 28 workers and their
families in tractors to the roadside along the Mutare-Harare road near the
Odzi river. Seven workers remained at the farm. The Commission was informed
that, as the workers had no other home than the farm, they had stayed on the
roadside for a number of months, despite being told by the District
Administrator that they should leave the area and being harassed and
intimidated by the authorities on a number of occasions. It was alleged that
on 12 August 2009 the District Administrator warned the farm workers that
"at the Chiadzwa diamond mine we killed 15,000; here you are just a few".

428. It was made known to the Commission that the farm workers were fearful
for their lives and that they had received threats that their roadside tents
would be destroyed at the end of August. It was reiterated that the farm
workers had nowhere else to go. Some farm workers had been told that they
were of Zambian, Malawian or Mozambican descent. Most, if not all, of the
farm workers had been born in Zimbabwe and had Zimbabwean identity cards.
They had never been to those countries nor did they speak their languages.

429. A union official indicated that he had handed the case concerning the
dismissal and underpayment over to the National Employment Council (NEC) at
the beginning of August 2009, but the farm owner had apparently refused the
summons to appear before the NEC, stating that the ZCTU and the farm workers
were all politicians. An appeal against the eviction notice was heard on 14
August 2009 and was unsuccessful on the grounds that the proceedings were
time-barred. The most recent information received by the Commission was that
the farm workers had been moved from their temporary roadside camp and were
dispersed in small groups in the surrounding hills.

IV. Other statements

430. The Minister of Lands and Rural Development explained that the GPA
stated that all those who needed land and applied for it would get it, with
farm workers considered in the same way as others. The Minister of Lands
explained that farm workers would be eligible under the "A1" land
distribution scheme, under which up to six hectares of arable land could be
allocated for communal grazing. The Minister acknowledged that the
Government probably needed to make more effort to reach farm workers in the
redistribution process.

431. The Ombudsperson indicated that she had been approached in relation to
a similar situation during the farm re-allocations by a large number of
people camping on the roadside in Mashonaland West. Following her
intervention with the Governor of the Province, all of those farm workers
had been allocated land.

432. The Minister of Lands noted that many farm workers remained on farms
after ownership changed hands as some of the associations formed to support
farm workers did not encourage them to find work elsewhere. There was also
disruption between old and new farm workers when former farm workers
remained on compounds without working for the new owner, but continued to
use the accommodation. He also noted that some of the farm workers were from
neighbouring countries and had not therefore been absorbed into local
communities. He had no personal knowledge of constraints on membership of
trade unions and was not aware of problems such as unionized workers being
singled out for eviction.

433. The Minister of Justice informed the Commission that many foreigners
were recruited during colonial times to work in the mines, railways and
farms because the indigenous people of Zimbabwe refused to cooperate with
the colonial powers in the context of forced labour and forced auctions
dispossessing people of their lands. He noted that this was the most
exploited and oppressed class in Zimbabwean society, as they had worked on
the farms without wages until independence in 1980. With intermarriage,
differences between the farm workers and indigenous Zimbabweans had almost
been eliminated, with the people in question speaking

the local languages, and being assimilated into the community. The Minister
of Justice stated

that "there is no black person in Zimbabwe who has nowhere to go".

434. He noted that farm workers were again being exploited by the white farm
owners. He stated that in 2000-01 they had been manipulated by the white
owners with the fear of unemployment, so that most of the violence against
the new farmers was carried out by the farm workers. In relation to the
current situation, the Minister of Justice stated that there was a shortage
of labour on the farms, caused by white farm owners telling farm workers not
to seek alternative employment as they would soon recover their farms. The
Minister stated that they were wrong to think that the land reform policy
was temporary.

17. The experience of the business community

435. The complaint concerning violation of trade union rights in Zimbabwe
was filed by Workers' and Employers' delegates. While the complaints did not
explicitly refer to the violation of employers' rights under Conventions Nos
87 and 98, the Commission met the Employers' Confederation of Zimbabwe
(EMCOZ) to obtain their views on the situation of freedom of association in
Zimbabwe.

436. When asked about employers' experience of freedom of association, the
EMCOZ representatives stated that "employers had no problem with freedom of
association": unlike trade unions, they could join any employers'
association they wished. With regard to the registration process, EMCOZ
representatives explained that, while the "bureaucratic process was long",
i.e. much longer than the 30 days provided for by the legislation, they did
not have complaints in this respect.

437. In relation to the envisaged labour law harmonization process and
eventual labour law reform, the EMCOZ representatives considered that the
current Labour Act was "adequate and not difficult for employers". They
admitted that the current labour laws were more favourable to employers than
to workers and referred to the right to strike. In this respect, employers'
representatives pointed out that "strike is the ultimate 'sanction' workers
have at their disposal against an employer". However, while the Labour Act
recognized this right, in practice "it is literally impossible to engage in
a lawful strike in Zimbabwe", as "strikes are to be authorized by police,
which never allows for that to happen".

438. Furthermore, EMCOZ representatives admitted that under the current
system "it is very difficult for workers to fight an employer": employment
grievance procedures were long, costly and frustrating for workers. EMCOZ
explained that courts tended to be "practical" and therefore more favourable
to employers. In the case of a dismissal, for example, because the courts
expected a worker to be proactive and look for new employment instead of
waiting for compensation for years, the amount of damages awarded by the
court was unlikely to represent the amount of wages due from the date of the
dismissal to the date of the court's final decision.

439. Describing their relationship with workers, EMCOZ indicated that
employers were affected by trade union dissatisfaction with the Government.
Furthermore, their relationship with workers was detrimentally affected by
the general environment in the country and, in particular, economic policies
adopted by the Government, including price control and foreign currency
regulations.

440. In relation to the price control regulations, it was explained to the
Commission that these operated regardless of the cost of production. The
result of this was that many businesses closed down as they could not cover
their costs by sales. The foreign currency regulations were twofold. First,
the Reserve Bank would take a percentage of foreign exchange, giving
Zimbabwe dollars at a lower rate. Second, employers were forced to use the
remainder of the foreign currency within a certain number of days as
otherwise it would be converted to Zimbabwe dollars, which were worthless.
As a result, it was not possible for businesses to save. EMCOZ indicated
that it perceived the forced retention of foreign currency by the Reserve
Bank as an extra taxation on employers on top of regular taxation. In
addition to the price control and foreign currency regulations, the Reserve
Bank of Zimbabwe had held a percentage of company profits for government
purposes, thus depriving businesses of funds to operate.

441. The Confederation of Zimbabwe Industries indicated that it represented
enterprises from the manufacturing sector, many of which had closed or were
operating with smaller numbers of employees. It agreed with the Zimbabwe
National Chamber of Commerce, which for the most part represented both small
and large employers in the service industries, that price control
regulations had made it impossible to manage businesses and caused many of
them to close down. The Confederation noted that dollarization was a huge
relief and that the flood of commodities had led to a reduction in prices.
Nevertheless, the price of utilities was still high, there were limited
numbers of Zimbabweans with disposable income, and businesses still had
little working capital.

442. The Commission was given the example of a company which had employed
120 workers in 2006, but by 2008 had to reduce its staff to 47 workers. It
was explained that it was more profitable, for a variety of reasons, for
industries to buy goods from South Africa and resell them in Zimbabwe, than
to re-open industries to produce the goods in Zimbabwe.

443. EMCOZ reiterated that the economic policies unfavourable to business
created a situation in which employers could not meet workers' demands. The
collapse of the national currency meant that pensions could not be paid.
While pension payments were currently rising slowly, the absence of a
conversion scheme continued to affect pension funds. The high taxation
introduced by the Government impacted equally on employers and workers, as
it made it impossible for employers to give workers what they sought, in
particular as regards wages. Inevitably, in such circumstances, collective
bargaining was negatively affected, and to a large extent, shaped by the
authorities. EMCOZ therefore concluded that while they had no problem with
the exercise of their right to organize, they could not fully enjoy the
right to bargain collectively.

444. With regard to the alleged mistreatment of ZCTU members, EMCOZ
representatives stated that they were aware of the intimidation and
harassment suffered by the ZCTU leaders and, from the outside, the employers
had felt uncomfortable with what had happened to the trade unions. One EMCOZ
official indicated that he had visited the Secretary General of the ZCTU in
hospital following the September 2006 events.

445. EMCOZ added that prior to the establishment of the inclusive
Government, its members also experienced intimidation and harassment, in
particular in the context of the price control and foreign currency
policies. EMCOZ explained that many employers had been "incarcerated for
running their businesses". These employers were often detained in custody
for up to three days, before being released without charge. During the
detention, employers may have been kept naked in small, overcrowded, and
unhygienic cells. While noting that they had no information of torture or
physical ill-treatment of employers, the EMCOZ representative pointed out
that the mere fact of incarceration was traumatic. He also clarified that
there had been no cases of detention following the establishment of the
inclusive Government.

446. EMCOZ considered that social dialogue was the only way forward to
improve economic conditions in the country and that issues such as wages and
salaries should be decided by involving all social partners.

447. With regard to the allegation that some of the unions were excluded
from the NECs, EMCOZ stated that employers were willing to negotiate with
any registered trade union representing workers and that if some trade
unions were not represented in a particular NEC, that had nothing to do with
the employers. It was up to the respective social partners to determine who
would be negotiating on their behalf. Workers decided themselves which union
would represent them according to the principle of proportional
representation. Employers had no say in this respect and would "stay
 neutral".

18. Interference in trade union affairs and anti-union discrimination

448. The Commission received allegations of governmental interference in the
activities of trade unions and anti-union discrimination in relation to
trade union members and officials. In particular, it was alleged that there
had been interference in trade union internal affairs, that the authorities
had "taken sides" with ZANU-PF against "particular unions", and that there
was a lack of protection against interference and anti-union discrimination.

I. Interference in trade union affairs

A. Demonstrations, marches and meetings

449. The Commission heard numerous statements concerning interference by the
Government in the organization of nationwide demonstrations and protests, as
well as local and regional trade union meetings, conferences and forums.
Despite the law not requiring trade unions to obtain police permission for
such activities, it appeared that this was expected in practice and that, in
many cases, permission to hold events was denied by the police.

450. The Commission was provided with 85 documentary examples of
notifications to the police by the ZCTU of planned events, and the police
responses, during the period 2003-08. According to these documents,
permission was refused for all processions, mass protests and
demonstrations, often with no reason given for the refusal. When grounds for
refusal were given, these often simply referred to a lack of capacity on the
part of the police to cover the event. At other times, the stated grounds
for refusal included that the event was likely to provoke public disorder,
lead to the disruption of public thoroughfares or that "criminal elements
will exploit the gathering/procession and cause mayhem".

451. The Commission was provided with one document in which the police
refused permission for two labour meetings in February 2003, stating that
"your fora definitely need the coverage of police. The main reason why the
fora are not approved is that during this period police are committed with
Cricket World Cup Games being held in Bulawayo". It was stated to the
Commission that more recently police permission for the May Day 2009
commemorations in Harare was granted only following intervention by the
Minister of Labour.

452. In many cases, permission for labour forums, conferences,
commemorations and celebrations was granted by the police, although often
with conditions. Often, permission was granted on the condition that there
was no discussion of "issues related to any political party", that "no
derogatory or inflammatory statements are made" and that there was no
"shouting slogans or any other thing which expressly or impliedly denotes
politics". In addition, certain permissions required the organizers to
ensure that there was no "grouping" before and after the meeting, and/or
that there was no singing and "toyi-toying" during or after the meeting. At
other times, the permission was granted on condition that uniformed and
plain-clothed police officers were present to monitor the event, or that
"they are provided with whatever information they should wish to know
concerning the event". Other common conditions included that the event did
not exceed the stipulated times, that no thoroughfare or public place was
"blocked or obstructed in any manner", and that the "smooth flow of traffic
is not disrupted". The police permission often expressly stated that the
POSA would be applied if the event resulted in public disorder, breach of
the peace or disorderly or riotous conduct. In most cases, more than one
condition was required of the trade union.

453. In some situations, events were disrupted by arrests, detentions and
violence on the part of the security forces. Often this disruption occurred
before the event took place, while trade unionists were distributing flyers
or other information concerning upcoming demonstrations or stay-aways. In
other cases, the authorities interrupted trade union meetings. For example,
in 2004, several ZCTU members indicated that plain-clothes police officers
broke into a labour forum providing feedback on negotiations in the
Tripartite Negotiating Forum (TNF) to local trade union members in Gweru.
The police stated that the meeting was illegal as permission pursuant to the
POSA had not been requested. Trade union officials explained to the
Commission that they had thought that they were acting within the law
because it was a trade union meeting with its members and so did not require
permission under the law. The Commercial Workers' Union of Zimbabwe stated
that armed police interrupted a meeting at which trade union leaders were
intending to give feedback to members on complicated negotiations at the NEC
in July 2006. On another occasion, police allegedly entered the board room
of the south-eastern region ZCTU on 24 March and 7 April 2007 during
meetings to prepare for May Day and ordered all those present to leave. In
all of these cases, trade union leaders were detained under the POSA before
the charges were eventually dropped.

454. In any event, it was alleged that police or CIO officers were covertly
or overtly present at all ZCTU meetings: sometimes they would be the "first
to arrive at the meeting"; there would "always be someone who came in and
sat in the corner". A trade unionist indicated that there was no requirement
in the law that a member of the police or security forces attended trade
union meetings, but that in practice the ZCTU would not be able to have a
meeting if they had not applied for permission and someone was present. The
Commission was provided with a copy of a letter dated 24 August 2006 from
the Nyanga district police to the eastern region ZCTU in which one of the
conditions upon which a ZCTU district conference was approved was that "any
number of law enforcement agents shall have access to the meeting". The
Commission was told that workers often did not wish to speak as a member of
the security forces was at every ZCTU meeting.

B. Search and seizure

455. The Commission was provided with information concerning the search and
seizure of trade union premises. A ZCTU Regional Secretary General informed
the Commission that on 28 July 2006 four police officers had come to her
office asking about flyers that she was distributing to workers concerning
taxation. As she felt threatened and was afraid, she gave them the 2,000
copies of the flyers. Another ZCTU officer indicated that during a search by
police of the ZCTU offices in the context of preparations for a stay-away in
April 2007, he had been slapped and beaten in front of other ZCTU members,
and had afterwards experienced pain and blurred vision for three weeks. A
trade union organizer stated that flyers had been taken by police officers
from regional offices of the ZCTU and the Domestic Workers' Union on 29
March 2007, as they prepared for the 3-4 April 2007 stay-away.

456. The Commission also received information concerning the search and
seizure of private premises of trade union officials and members, often
associated with the preparation of ZCTU-organized nationwide demonstrations
and protests.

457. A ZCTU official from Rusape indicated that at 3 a.m. on 13 January
2002, ZANU-PF youths, war veterans and CIO operatives had searched his house
for ZCTU and MDC materials, finding only ZCTU T-shirts. 467 Another trade
unionist indicated that in May 2003, ZANU-PF youths abducted and assaulted
him, and then searched his home, taking ZCTU material and regalia that he
had there. He stated that this had traumatized his wife and two children to
the extent that they had asked him to leave the ZCTU, but he had refused as
it was a "calling" for him. A ZCTU official from Gweru stated that in the
context of a communication workers' strike in 2004, police had taken him in
leg irons to his home and searched it, but found nothing. Other ZCTU
officials told of having their houses searched and of ZCTU flyers, banners
and T-shirts being confiscated by plain-clothes police officers or CIO
operatives in relation to the 13 September 2006 demonstration and during the
run-up to the elections in 2008.

C. Financial matters

458. The Commission was advised that the Labour Act conferred power on the
Minister to order investigations into trade union financial affairs. The
Commission was informed that the Minister of Labour had ordered
investigations into the finances of the ZCTU in 2006. A ZCTU official
alleged that the investigation was not impartial and that ZCTU staff were
treated as convicts and threatened. The ZCTU Secretary-General explained
that following the investigation, the courts found that the ZCTU had done
nothing wrong.

459. The ZCTU stated that it had been "brought to its knees" by the huge
number of arrests and detentions of its members. The resources of the ZCTU
had been "depleted" by the cost of the legal fees, bail fines, provision of
food to detained trade unionists, transport for lawyers and officials
searching for those detained in police cells around the country, and medical
costs. The union indicated to the Commission that overseas donors had
"rescued" the union by transferring money to its bank accounts.

460. The ZCTU further explained that the Reserve Bank of Zimbabwe had
created its own ZCTU account in which all overseas-sourced ZCTU funds were
kept; to use the money, the ZCTU had to make a request to the Reserve Bank,
which would sometimes give the money and other times not. As a result, the
ZCTU was unable to pay staff, which caused disaffection and had led to a
number of resignations. The Commission was advised that since 22 August 2008
the Reserve Bank had held US$99,621 of ZCTU money; on 13 August 2009,
immediately after the Commission's arrival in the country, the money had
been released to the ZCTU.

D. Interference in trade union affairs

461. It was alleged to the Commission that government-sponsored unions
parallel to ZCTU affiliates had been established. The Commission received
information that a parallel union had been established in the commercial
workers' sector which was involved in physical violence. It was stated that
a number of government-sponsored unions had been formed in the agricultural
sector, amidst allegations of pressure on workers to renounce GAPWUZ and on
employers not to transfer trade union dues to GAPWUZ and to dismiss GAPWUZ
leaders. The Commission was informed that in 2000, GAPWUZ had a membership
of approximately 200,000 workers. After the commencement of the land reform
programme in 2000, union officials were beaten, workers were forced to
renounce GAPWUZ and the ZCTU, and union offices were closed, and in some
cases burnt, down. The current membership of GAPWUZ was 25,000 workers,
which included members who were "non-subscribed" as the new farm owners
would not allow membership nor deduct dues.

462. The Commission received information suggesting governmental
interference in the ZCTU-affiliated sugar industry trade union. It was
alleged that in September 2001 ZANU-PF, the President of Zimbabwe and the
Minister of Labour deployed war veterans to take over this trade union. It
was indicated that this was done by force, with workers obliged to side with
the new leadership of the union. The Commission was advised that in February
2009 some workers formed a splinter trade union to see if there were still
workers who were faithful to the ZCTU; 8,000 workers registered with the new
ZCTU affiliate, out of a total workforce of 15,000 workers at the plant.

E. Other statements

463. The Commission met the Ombudsperson, who indicated that most of the
complaints that she had received from trade unions had concerned delays to
their registration. She stated that all these cases had been resolved and
the trade unions concerned were now registered. She indicated that one of
the cases with which she had dealt involved the PTUZ, and she had

indicated that it was their right to be registered. She further indicated
that it was hoped that a further two trade unions for teachers would soon be
registered.

464. The Commission also met both ZFTU factions, which stated that they had
no issue of interference or anti-union discrimination and were able to do as
they wished.

II. Anti-union discrimination

465. A number of ZCTU trade union officials and members recounted having
been the victims of anti-union discrimination in their workplaces. It was
alleged to the Commission that the authorities often forced employers to
discriminate against trade union officials and members.

466. One ZCTU member from a rural area stated that in 2003 he had been
dismissed from his position as a human resources officer in the town council
that he had held for five years for "trying to champion workers' rights" by
refusing to replace council workers with ZANU-PF supporters. In addition,
his property (clothing, furniture, personal documentation including
diplomas) was taken from his home and put into locked storage that he could
not access. He was forced to leave the area with his wife, seven children
and widowed mother as he was receiving threats against his life from war
veterans; and, when he attempted to return to work following rulings by a
labour officer and senior labour officer that he should be reinstated, the
police locked him up for a day and armed security guards at his workplace
refused his entry. He was still unemployed and living on charity as, without
proof of his qualifications in his personal papers, he was unable to get
another job.

467. Another ZCTU official explained that in 2002, following threats to his
employer by ZANU-PF youth, war veterans and CIO operatives, he was
dismissed. The ZCTU President indicated to the Commission that he believed
that his dismissal from ZimPost in January 2004 was based on his trade union
activities.

468. The Commission was informed that a number of agricultural workers were
dismissed after attending ZCTU May Day celebrations in 2008 486 and it was
alleged that the land reform programme was used as an excuse to dismiss farm
workers who were trade union activists.

469. The Commission was provided with a letter dated 25 March 2002 from a
local ZANU-PF office referring by name to three PTUZ members, in which the
headmaster of a primary school was advised that: . the following teachers
must not report on duty on the second term due to the fact that, during the
Presidential Election Campaign 2002, they were not doing their job which
they were employed for by the Zimbabwean Government. They are supporting the
opposition party MDC whilst they are getting paid by the government which is
ruling today. The Commission was advised that the three teachers accordingly
lost their jobs and had to move to a different part of the country.

470. A number of ZCTU members stated that they had been transferred without
their consent on account of their trade union activities. One former trade
unionist explained that, after his house had been burnt down and property
destroyed in 2002, he was transferred from Manicaland to Mashonaland.
Another ZCTU member who had been transferred within his workplace stated
that the management had "been forced to mistreat us at work", not allowing
trade union activists to meet with employees or telling employees not to
listen to the trade union leaders. A trade unionist who had been detained in
April 2007 noted that he had been transferred when he returned to work; he
stated that things were still difficult for him at work.

471. Another trade union member stated to the Commission that after the
police, accompanied by ZANU-PF youth, had told his employer that he was
someone who wished to topple the Government, he had been demoted in January
2009, and now lived in fear that he would be dismissed. He stated to the
Commission that efforts were made to get him to leave the ZCTU, offering him
a position in the ZANU-PF party in return.

472. Many interlocutors with whom the Commission spoke during its mission to
Zimbabwe indicated a general sense of lack of protection of trade unionists
by the courts. This was often related to a belief that there was
governmental influence in judicial decisions. There was an assumption that
court orders would not be enforced by the police or the courts. It was
further explained to the Commission that in the case of a worker who had
been unfairly dismissed, it was most likely that the employer would prefer
to pay damages, a decision that the Labour Court was likely to uphold.

19. Collective bargaining and social dialogue

473. The Commission received information on the functioning of collective
bargaining and social dialogue in Zimbabwe. Most of those whom the
Commission met from the trade unions, employers' organizations and
Government indicated that they were largely satisfied with the established
collective bargaining and social dialogue practices. They noted, however,
some problems in legislation and in practice. The President of the ZCTU, for
example, stated to the Commission that collective bargaining itself had
survived in the industrial relations system in Zimbabwe. He further stated
that some form of discipline had been maintained and that parties by and
large still adhered to the collective bargaining process.

I. Collective bargaining

474. The Minister of Labour explained to the Commission the existing levels
of collective bargaining in the country. First, at the enterprise level,
works councils were composed of equal numbers of employees' and employers'
representatives which negotiated collective agreements. Once an agreement
had been negotiated, it would be referred to the employees and trade union
concerned. If it was approved by the trade union and more than 50 percent of
employees, the agreement became binding on the employer and employees
concerned.

475. The Commission was provided with a copy of an enterprise-level
collective agreement from a dairy company in force from 1 July to 30
September 2009 (see box below) that illustrates the impact of the economic
situation in the country on collective bargaining.

The Collective Bargaining Agreement for [a company and workplace-level
union] reached by all parties on 23 July for the period 1 July 2009 to 30
September 2009

Overview

Both parties have taken into consideration the following key factors as
precursors to the collective bargaining negotiations for the period 1 July
2009 to 30 September 2009.

?? The commitment to ensuring that conditions of service are market related

?? That conditions of service must be sustainable

?? That all parties to the discussion recognise that the group still faces
challenges related to

?? Shortage of forex and spares

?? Low- and poor-quality raw milk supplies

?? High cost of utilities

?? Inconsistent supply of utilities e.g. coal, electricity and water

?? Plant breakdowns

?? Depressed sales volumes

?? Low capacity utilization

?? Erratic fuel supplies

?? Unavailability of favourable lines of credit

?? Emerging competition

Collective bargaining agreement

Items agreed upon by both Management and the Union for the period covering 1
July 2009 to 30 September 2009, which applies to non-managerial employees
and to be implemented with effect from 1 July 2009, are as follows:

Conditions of service

Salary review

In this collective bargaining agreement "salary review" means review of
salaries and conditions of service.

The least paid employee will earn a total package of US$200 split as US$187
cash and 1 tube of milk in July 2009. The cash component will be implemented
according to grade differentials and paid through the banks. The parties
agreed that the above minimum will be on condition that employees will work
one month paid and the next month as unpaid leave provided that:

?? it is management's sole prerogative to determine which employee will go
for unpaid leave and when

?? the period of one month will be determined by operational needs and may
not necessarily be a calendar month and could be broken down on a weekly
basis.

Conditions of service refunds agreed to are as follows:

Parties also agreed that conditions of service refunds will remain as
follows:

Stand by refunds

US$1 per week for July 2009

Shift refunds

US$1 per shift for July 2009

Travelling and subsistence refunds effective 1 July 2009 will be as follows:

?? Overnight refund for any night spent away from home station on company
business is US$1 per night.

?? Breakfast - US$2per day. This is to cover the cost of breakfast when an
employee is not booked in or before arriving at a hotel.

?? Lunch - US$2 per day. This is to cover the cost of lunch when away from
home station and if not provided with accommodation.

?? Dinner - US$2 per night. This is to cover the cost of dinner for any
night spent away from home station and not provided with accommodation.

?? Claim on private accommodation - US$1 per night.

Signed at Harare on this 24th day of JULY 2009

Chairperson: (Signed)

Union President: (Signed)

476. The second level of collective bargaining in Zimbabwe was at the
industry level between organized labour (i.e. trade unions) and organized
employers' organizations in NECs. After negotiation, collective agreements
were submitted to the Registrar for registration for record purposes.
However, where any provision of a collective bargaining agreement appeared
to the Minister to be inconsistent with the Labour Act or unfair with regard
to the respective rights of the parties, the Minister could direct the
Registrar not to register the collective agreement until it was suitably
amended by the parties. It was the parties' duty to negotiate such
amendments and the Minister would consult with the trade union in the
exercise of his or her power to require amendments. The Ministry of Labour
stressed to the Commission that "sections 27 and 28 of the Labour Act were
merely procedural provisions which do not in any way interfere with the
operation of the organization". Once a collective agreement at the industry
level was registered, its provisions would prevail in any conflict between
its provisions and those of an enterprise-level collective agreement unless
the later was more favourable to the employees. The Commission was informed
by the Ministry of Labour that there were 45 NECs in Zimbabwe and "as such
there are 45 collective bargaining agreements at the industrial level".

477. In addition, the Commission was informed that a separate procedure
existed for unorganized workers, such as unclassified employees and domestic
workers. For such workers, a NEC did not exist in the absence of organized
worker and employer organizations. Rather, a Wages Advisory Committee
advised the Minister on the conditions of service that should be applied to
such workers.

478. The Commission was provided with information suggesting problems in the
practice of collective bargaining in certain sectors. In particular, trade
unionists representing farm workers stated to the Commission that they had
been verbally abused and guns had been shown to them as threats during
negotiations. It was further alleged that one new farm owner had refused to
negotiate with the trade unions, or to engage with the NEC in the rural
sector, as he considered them to be "politicians". Other trade union
officials stated that collective bargaining in the motor vehicle industry
was not fair due to governmental influence through its part-ownership and
that many managerial positions in motor vehicle plants were held by
politicians.

479. One of the two factions of the ZFTU stated that it experienced problems
with employers not recognizing its affiliates. It was their belief that all
registered trade unions should have the right to participate in NECs,
whereas NECs now often refused to include their members. This resulted in
the situation where they lost membership as they were not able to represent
their members in negotiations. EMCOZ stated that it would negotiate with any
registered trade union organization on the NEC as determined by the workers
themselves.

480. In relation to collective bargaining in the public service, the
Commission had meetings with the Apex Council, which represented workers in
the public service, the Minister of Public Service and members of the Public
Service Commission (PSC).

481. The Commission was made aware that the conditions of service of public
servants, including remuneration, benefits, hours of work, leave of absence
and discipline, were determined by the PSC in consultation with the
Minister. The PSC engaged in regular consultations with recognized
associations with regard to public servants' conditions of service, but the
conditions of service it fixed would not be invalid solely because they were
not subject to prior consultations or were not agreed upon by all the
parties to a prior consultation.

482. The Chairperson of the PSC explained that it had never refused a
request from public service association representatives to discuss a
particular point in their negotiations. It was indicated that, pursuant to
law and the Constitution, it was composed of three to eight members,
including a chairperson. While previously the members of the PSC had been
appointed by the President of Zimbabwe, by virtue of the arrangement under
Amendment No. 19 to the Constitution, members of the PSC now were appointed
by the President after consultation with the Prime Minister and Deputy Prime
Minister.

483. It was explained to the Commission that the National Joint Negotiating
Council was composed of equal numbers of representatives of public servants
and public service employers. Its objective was to engage in mutual
consultations and to negotiate salaries, allowances and conditions of
service in the public service. Its duty was to conclude and enter into
agreements on salaries, allowances and conditions of service for submission
to the Minister for his or her consideration.

484. The Apex Council explained to the Commission that it represented
recognized public service associations in relation to the Government. It
claimed that there was no real collective bargaining in the public sector as
the Government imposed figures at the negotiation table. In this sense, it
described itself as "powerless" and stated that it was unable to represent
its members effectively.

485. The Commission met the Health Services Board, which was responsible for
setting conditions of service for public service workers in the health
sector. It explained that its Bipartite Negotiating Panel was responsible
for "engaging in mutual consultations and negotiate salaries, allowances and
conditions of service in the health service". The Board stated that the
Panel concluded agreements for submission to the Minister, through the
Board, for his or her consideration.

II. National social dialogue

486. In relation to social dialogue at the national level, the Commission
was made aware that the Tripartite Negotiating Forum (TNF) was an
institution for social dialogue that had existed since the late 1990s. It
was explained that the TNF was composed of equal numbers of the tripartite
members, with each party defining its own composition. The Government
provided permanent secretarial arrangements and chaired the meetings.
Employers were represented by EMCOZ, which was an umbrella body representing
other employer bodies, such as the Chamber of Mines. Workers were
represented on the TNF "mainly" by the ZCTU, which then invited the ZFTU and
civil service representatives. One faction of the ZFTU informed the
Commission that it considered it inappropriate for the Government to pass
the responsibility for determining the composition of the worker
representatives onto the ZCTU, rather than retaining this responsibility for
itself.

487. Representatives of the ZCTU and EMCOZ stated to the Commission that the
TNF had never operated satisfactorily. The Commission was informed that in
the past very little agreement had been reached within the TNF, with many
statements not receiving the signatures of all three parties.
Representatives of one faction of the ZFTU stated that there was much talk,
but little action, in the TNF.

488. Nevertheless, the Minister of Labour and Social Services, the ZCTU,
both factions of the ZFTU and EMCOZ all indicated to the Commission that
they were committed to the TNF and social dialogue as the way forward.

489. Many interlocutors stated to the Commission that they had found the
ILO-funded high-level retreat on social dialogue and associated study visit
to the South African social dialogue institution, the National Economic
Development and Labour Council (NEDLAC), to be particularly inspiring in
terms of the future operation of the TNF. The ZCTU stated that, following
those activities, it felt that "perhaps this time, it is going to work". The
Minister of Labour stressed that the Government was open to social dialogue
and that these activities closed the gaps between Government, workers and
employers. EMCOZ agreed that these activities were very successful.

20. Institutional protection of trade union rights

490. It was made known to the Commission that no specialized institutions
for protecting trade union rights existed in Zimbabwe. Cases concerning
trade unions and their legal rights would be dealt with in the Labour Court
or the ordinary courts. The Commission heard statements concerning a lack of
institutional protection of trade union rights in Zimbabwe. Allegations made
to the Commission related to delays in court proceedings and the lack of
enforcement of court orders, which appeared to reinforce a perception of
bias.

I. Delays in judicial procedures

491. A number of trade unionists stated that there had been significant
delays in court cases in which they had been involved. One ZCTU member
explained that, after he had been dismissed in 2003, his employer refused to
reinstate him despite a Ministry of Labour labour officer ruling in his
favour. When he returned to his town with a letter from a senior labour
officer stating that he should be reinstated, he had been detained by police
and refused entry to his workplace. In April 2004, he appealed to the Labour
Court and the case was heard in September 2006. Due to a mistake in the
summons on the part of the court officers, his employer was not informed of
the hearing date and so the case was postponed until January 2009; the
Commission was informed that he was still awaiting the decision.

492. Representatives of both the ZCTU and EMCOZ noted problems with the
standing of the Labour Court, its resourcing, and the enforcement of
decisions, which could be remedied by a specialist Labour Appeals Court.
During the Commission's meeting with the Judge Presidents of the Labour
Court, it was stated that a specialist Labour Appeals Court would be
desirable as it would ensure consistency in labour-related cases, as
suggested by the ZCTU. It was stressed, however, that this was a policy
decision.

493. One faction of the ZFTU indicated that the Labour Court was considered,
in the case of dismissals, to issue judgments that were more favourable to
employers. In comparison, arbitration decisions were considered to be more
favourable to workers. It was explained that arbitration, however, cost a
lot of money for workers, and decisions would be subject to a possible
appeal to the Labour Court by employers which would, in turn, take an
average of four to five years. The ZFTU representatives contended that
delays in the Labour Court process could be partially solved by increasing
the numbers and powers of labour officers.

II. Enforcement of judicial decisions

494. The Commission was informed of problems in the enforcement of court
decisions of both the Labour Courts and the ordinary courts. The Apex
Council informed the Commission that the only way to enforce decisions of
the Labour Court was by going to the Supreme Court, but "who has resources
to go to the Supreme Court when salaries are not being paid?"530 A ZCTU
lawyer explained that the organization had brought contempt of court cases
in relation to court orders that had been ignored by the police, none of
which had been successful. He claimed that there was a general assumption
that court orders would not be enforced.

495. A number of trade union members indicated that they had received court
orders in their favour in many cases. These included cases concerning
allegations of assault and detention by police officers and security forces,
as well as cases involving strikes or permission for demonstrations. Trade
unionists claimed that court orders in their interests were most frequently
neither followed by those to whom they were directed nor enforced by court
staff or police. A trade union official who had received a court order in
relation to harassment against her stated that the initial protection
provided by the police had soon stopped. Most recently, the Commission was
informed that despite the ZCTU having received a court order allowing a
commemoration on 12 September 2009, the police had intervened in the event
on the day and detained trade union officials.

III. Misuse of court process in detentions

496. Many trade unionists contended that they had been detained by the
police and security forces for periods of time exceeding that allowed for by
Zimbabwean law or that the court system had been misused as a form of
harassment. In this regard, the ZCTU provided information to the Commission
that its lawyers often had to obtain urgent court orders so that its members
would be brought to court for initial remand. The Commission was informed of
a case in which a number of trade unionists, following a five-day detention
in December 2008, had appeared in court 17 times; these trade unionists were
allegedly required to attend court a further three times between September
and December 2009. The Commission was advised that on each occasion the
court hearing had been postponed.

497. In addition, the Commission was informed that when the ZCTU President
and officials were detained in November 2009, they were charged by the
police with contravention of the POSA and brought to court after four days
in detention. The Magistrate reportedly found the charges unfounded and
ordered their immediate release.

IV. Other statements

498. The Commission met the Attorney-General, who informed the Commission of
the significant economic constraints on the administration of justice. He
indicated that the court system was operating on a 1 percent budget and
referred to a lack of human resources in his office and the judiciary as a
result of a brain drain from the country. Although he stated that he was
committed to delivering speedy trials, in such circumstances this was not
possible. The Attorney-General remarked that currently it was a matter of
"having to make do". The Attorney-General further explained that the
judiciary had the power to discontinue proceedings in cases of excessive
delay in judicial proceedings on the grounds of constitutional infringement,
should that be argued in court by defence lawyers.

499. In relation to the alleged lack of enforcement of court orders, a
Deputy Attorney-General indicated that the police was expected to comply
with court orders. The appropriate response in cases in which police
officers did not comply with court orders was for the complainant to have
the particular officer brought before court for contempt. He acknowledged
that, with regard to the payment of damages, it was the duty of the
Attorney-General's office to remind governmental institutions of their
duties before the law. The Attorney-General's discretion not to prosecute
did not extend to situations in which there was a clear violation of the law
and only the President of Zimbabwe had the power to grant mercy to a
convicted person. In a case in which the court process took too long, it
would be possible for the procedure to move to summons, whereby the charges
would be withdrawn and later reinstated when the prosecution was ready to
proceed.

500. In its meeting with the Judge Presidents of the Labour Court, the
Commission was informed that approximately 156 cases were set down each
month and, on average, 71 cases were considered each month. The lack of
financial and other resources was mentioned, related to a perceived problem
with the standing in which the Labour Court was held. It was suggested in
this regard that the Court would benefit from an institutionalized exchange
between High Court and Labour Court Judges. It was also asserted that it
would be proper for the Labour Court to be able to enforce its own
decisions, make urgent orders, and enjoy an inherent jurisdiction.

501. The Commission also met the Chief Magistrate and magistrates of the
Magistrates' Court, and the Director-General of the Judicial College on
behalf of the Judge President of the High Court. The Chief Magistrate stated
that Magistrates' Courts were endeavouring to render justice in the
circumstances.

V. Perception of bias

502. Finally, the Commission was made aware that procedural problems allowed
a perception of bias to exist on the part of many of the interlocutors whom
it met. ZCTU interlocutors stated that they felt at "the mercy of the arm of
Government" in that even when the courts ruled in their favour, the arms of
State did something else. It was explained to the Commission that the ZCTU
believed that there was no separation of powers and that the Government saw
the legislature and judiciary as belonging to it. In this regard, the
President and Secretary General of the ZCTU indicated they had been charged
with treason and actions "likely to lead to overthrowing the Government".

503. ZCTU leaders stated that the ZCTU applied the law as interpreted by the
courts, but "on the streets the police applies its own interpretation". A
ZCTU member from Bulawayo claimed that army or police would be present even
at authorized demonstrations. He further claimed that the security forces
would always find a reason to arrest workers under the POSA, such as causing
traffic congestion or possession of weapons, which the police interpreted to
include mobile telephones and books, as these could be thrown.

504. The Commission met a number of national non-governmental organizations
which stated that there was a need for institutional reform in the judicial
system to develop the confidence of the public and the legal profession. It
was asserted that legislation had been used selectively and abusively and
that, on the few occasions that perpetrators of violence had been arrested,
they were either not prosecuted or had been selectively prosecuted. It was
contended that disregard of court orders was "routine" in cases with a
political component. It was stated that at the level of the Magistrates'
Court, judicial independence existed, except perhaps in some rural or
provincial areas. In comparison, in the High Court and Supreme Court
questions of independence were raised, extending even to a suggestion of a
political component in the allocation of cases to judges. In general, there
were significant delays and administrative problems in the court system, low
salaries and lack of security of tenure, and no judicial code of conduct to
guide judges.

505. EMCOZ stated that there was an impression of partisan administration of
the legal process, leading some people to have no confidence in the
existence of the rule of law in Zimbabwe. This perception was of serious
concern to business because of its likely impact on the business
environment. Some incidents of infringements of human rights had occurred
and there were difficulties where the courts were considered to be
compromised. It believed that much needed to be done in terms of the
transparency of the legal system and the independence of the judiciary.

506. The Prime Minister emphasized that the way forward was to ensure that
the rule of law applied to all in Zimbabwe and that there was no more
impunity. In his opinion, it was important "not only that justice was done,
but also that it was seen to be done".

VI. Other institutions

507. The Commission was made aware of other possible institutions that could
protect trade union rights in Zimbabwe. The Minister of Constitutional and
Parliamentary Affairs explained to the Commission that the Constitution
allowed for four independent commissions in Zimbabwe. He indicated that the
process of appointing the members of the Media Commission, which was nearing
completion, had involved the principals choosing nine appointees from 12
names. The Minister indicated that to ensure an enhanced accountability and
transparency, applications had been invited for appointments to the Human
Rights Commission, which would be judged by a panel of human rights experts.
He indicated that a similar process was envisaged for the Anti-Corruption
Commission and the Zimbabwe Electoral Commission.

508. In addition, the Ombudsperson indicated to the Commission that she had
considered cases concerning trade union rights, and that her Office would
continue to welcome such cases in the future.

509. The Commission was further informed by many interlocutors of the
important potential role of the Organ for National Healing, Reconciliation
and Integration. This institution is discussed in more detail in the
following chapter.

21. The current situation: National healing and reconciliation

510. From the time that it began its work, the Commission of Inquiry was
mindful of the political changes in the country that had occurred since the
complaints against the Government were made to the ILO Governing Body. An
understanding that Zimbabwe had moved towards a process of national healing
and reconciliation, following the establishment of an inclusive Government,
was the context against which the Commission exercised its duties, and was
notably the reason for its initial goodwill mission to the country. It
hoped, while being faithful to its mandate, to contribute to the healing and
reconciliation process in Zimbabwe.

I. Acceptance that "things" occurred in the past

511. During its goodwill mission, the Commission was struck by what appeared
to be a genuine commitment to work together towards a new future on the part
of most, if not all, the Zimbabweans that it met. The Ministry of Labour
stated that following the GPA there was "collective resolve among all
Zimbabweans to move the country forward in harmony". On many occasions, the
Commission heard statements that there was a new sense of hope or optimism
in the country, with the establishment of the inclusive Government. The Apex
Council stated that since the establishment of the inclusive Government,
violence had declined tremendously. Some members of the ZCTU stated that
there had been fewer problems with harassment and violence since the
establishment of the inclusive Government.

512. One aspect of this commitment was an apparent acceptance, by
governmental officials, trade union and employers' organization
representatives and other stakeholders that "things had happened" and that
efforts should be directed towards ensuring that they were not repeated.
Government representatives acknowledged the overall veracity of many of the
allegations referred to the Commission, only disputing some details, their
extent and the attribution of blame; the Ministers of Justice, Foreign
Affairs and Media, for example, referred to some "gross exaggerations" in
the complaints. Government representatives claimed, however, that such
"things" were a matter of the past and that the current national healing and
reconciliation process that was under way was part of a very real commitment
to identifying what had happened and the appropriate way forward. The Prime
Minister counselled that it was necessary to "distinguish between what
happened and what is happening".

II. Organ for National Healing, Reconciliation and Integration (ONHRI)

513. Many government ministers whom the Commission met commented on the
fundamental role that could be played by the ONHRI. In its reply to the
article 26 complaints, the Ministry of Labour hoped that the complaints of
breach of freedom of association and collective bargaining rights "will get
due consideration among other matters under the auspices of the said Organ".
The Prime Minister thought that the ONHRI could go a long way to educating

people about how to be a tolerant society.

514. During its goodwill mission in May, the Commission met all three
Ministers of the ONHRI; it met the ONHRI again during its on-the-spot
mission in August. The members of the ONHRI explained that its three
members, nominated by the President of Zimbabwe and each one a member of one
of the three political parties to the GPA, were Ministers of State in the
Office of the President, with their independence guaranteed by being outside
Cabinet. They were considered to be senior "elders". The ONHRI was
established after the Cabinet had been sworn in, as an independent body and
upon the basis of the GPA. Article VII(1)(c) of the GPA set out the mandate
of the ONHRI as a mechanism to ensure Zimbabwean national healing, to deal
with the long history of violent conflict, and to create a peaceful,
tolerant and united society which resolved differences through dialogue. A
main element of the ONHRI was to acknowledge past wrongs, in the spirit of
article XVIII of the GPA. The ONHRI had decided that it should respond to
the wishes of the country in terms of the approach it would take. It
explained that its approach was to act within the African context, aiming to
be participatory and inclusive. Its aim was to create an environment in
which Zimbabweans could say what happened to them. The members of the ONHRI
stressed that the answers to Zimbabwe's problems were inside the country and
not outside it.

515. The Commission was informed that the President of Zimbabwe had declared
24-26 July 2009 as dedicated to the national healing and reconciliation
process, with an awareness-raising campaign. Following that, the ONHRI began
its next stage of engaging with civil society organizations in the
provincial capitals on best practices and the way forward. The final stage
would be for experts in conflict resolution to refine all the information,
which would be deliberated upon and adopted in a large conference. The
Commission was told that the ONHRI hoped to "cool the political climate" and
to stimulate research into past abuses in Zimbabwe.

516. While acknowledging that there was some "vulnerability" and that the
situation was "not settled", the Ministers believed that things had changed
in the country as people no longer accepted the slogans and were starting to
reorganize their lives thanks to the GPA. It was stated to the Commission
that people were waiting to hear what the ONHRI could do for them. It
considered that the breaches of freedom of association rights that the
Commission was called upon to consider had occurred "at the height of
polarization" in the country and, since then, there had been a shift in the
political environment.

III. Recent developments

517. The Commission was informed of a number of recent developments within
the context of the inclusive Government and the national healing and
reconciliation process. These included publicized action taken by the
Co-Ministers of Home Affairs. First, the Co-Ministers had called on all
parties to desist from violence and indicated that, following a period of
grace, anyone committing crimes would be arrested. Second, the Co-Ministers
had issued guidelines clarifying the legal procedures to be followed when
individuals expressed themselves through demonstration. Third, the
Co-Ministers had instructed the police to interact with communities to
explain the role of the security forces. It was stated to the Commission
that this process had

already borne fruit by August 2009, as people felt able to express their
personal views. Fourth, the National Security Council was established to
deal with issues of how security forces would, and should, operate.

518. In addition, the Commission was informed of various decisions taken by
the Minister of Education, including introducing human rights education as a
component of the curriculum. The Commission also met the Minister of Media,
Information and Publicity, who indicated that there was full media freedom
and that the foreign press was present in the country. Many interlocutors
mentioned the Constitution-making process under way in the country. While
there were doubts by some Zimbabweans as to the process, others considered
it to be an essential element of the way forward.

519. The Commission was informed of planned legislative reform of relevance
to freedom of association and collective bargaining rights. The
Attorney-General confirmed that proposals for reform of the POSA and the
harmonization of the Labour Law and Public Service Law were under
consideration. In addition, concerning social dialogue, the Commission was
further informed that the TNF had been revitalized, and the Kadoma
Declaration had been signed by all parties. There was agreement between the
Government and the social partners on the need

for legislative reform of the TNF.

520. A number of interlocutors stated to the Commission that they could not
bear to consider that the inclusive Government would collapse as the
"repercussions were too ghastly to contemplate". 571 The ZCTU stated that
despite believing that there were tough times ahead, it did not wish the
country to "get into anarchy".

IV. Concerns

521. The Commission heard many concerns with the process of national healing
and reconciliation. The ZCTU stated that the ONHRI was a body without legal
basis and had been established to provide an additional three ministerial
positions not contemplated by the GPA. It considered that the ONHRI would
only be successful if it was given a legal status. Some members of the Apex
Council doubted the ONHRI's potential.

522. Some trade union members stated to the Commission that the fear and
victimization were still there and there had so far only been superficial
changes since the establishment of the inclusive Government. It was claimed
that Zimbabwe was "heading for the worst" and there was a fear that
preparations were being made by ZANU-PF for "something massive". A public
service representative stated that problems had not been solved, but simply
postponed. Many trade union members stated that, despite there having been
few recent incidents, they still lived in fear. There was a perception that
the "police pretend to have changed".

523. The Commission was made aware of a recent shooting in the context of a
strike at the Shabanie mine on 25 September 2009. Following another strike
in the mining sector, all trade union officials and the entire works
committee members were dismissed in July 2009. It was also informed of the
denial of permission for demonstrations by the ZCTU since the formation of
the inclusive Government in 2009, and the breaking up of a ZCTU event in
Harare by police on 12 September 2009. In addition, it was made aware of the
arrest and detention of the ZCTU President and four officials for four days
in November 2009 during trade union activities; and was informed that
threats had been made against the family of the Secretary General of the
General Agricultural and Plantation Workers' Union of Zimbabwe (GAPWUZ) on 3
November 2009.

V. The role of the Commission of Inquiry

524. Most of the trade unionists whom the Commission met indicated that they
felt that there was a need for a truth and reconciliation process. The
Commission was told by individual workers that they wished to be able to
state what had happened to them. They wished to hear an acknowledgement of
what had happened and wanted the world to know the truth. Many union members
indicated that they wanted the authorities to explain why this had happened
and to apologize. Some trade unionists felt the need for the perpetrators to
be punished and those who had suffered to be compensated. The Commission was
told by a number of trade union members that the reconciliation process
should engage with both victims and perpetrators, as both were fearful; the
focus should be on allowing the country to move forward. The
Secretary-General of the ZCTU explained to the Commission what he wanted, at
least in respect of his arrest and detention on 13 September 2006:

I want my and my colleagues' assault investigated and that those who were
behind the assault and the perpetrators be brought to book [justice]. They
had no right whatsoever to act in the manner they did. I also want my and my
colleagues' unlawful and unnecessary detention in police cells ... to be
investigated and that those found responsible be made to pay for unlawfully
detaining us ... I want the State to be held accountable for the detentions
and the injuries therefrom.

525. In relation to the national process for healing and reconciliation, a
number of governmental officials emphasized the detrimental effect on the
country of the issue of land having been left unresolved at independence and
the imposition of sanctions by the international community. In this regard,
the Minister of Justice asked the Commission not to "reopen wounds" as the
country was in a process of healing. He believed that it was best for such
matters to be dealt with through the country's own process of healing and
reconciliation rather than through an outside hand. He stated that the issue
of land was what had divided Zimbabwe and that this was resolved in the GPA.
526. The Minister of Labour asked the Commission of Inquiry to help the
country in promoting national healing and social and economic growth. She
stressed that there was a new dispensation that was addressing the problems
so as to take Zimbabwe forward as a country. She stated that, after hearing
the stories, the Commission was a way of closing the past and moving forward
and, in that sense, it was a unifying process. She indicated that she hoped
that the Commission would be able to persuade the country of the importance
of social dialogue and partnership.

527. The Prime Minister stated to the Commission that it would be best to
discuss what had happened in the past only as a way of setting the record
straight. He believed that people should be allowed to speak, as Zimbabwean
people had gone through a series of traumatic experiences. There was a
responsibility to allow victims and perpetrators to be heard, to ensure

that society was able to heal. He considered that any mechanism should
respond to the cries of victims as well as engage with the perpetrators so
as not to perpetuate the divisions in the country. The Prime Minister stated
that Zimbabwe could not hide what had happened, could not defend what had
happened and needed to acknowledge what had happened. He stressed that the
Government was seeking to ensure that the events of the past would not
reoccur: it was a case of "never again".

Part V.

Conclusions and recommendations

22. Conclusions

528. Having set out the allegations and information obtained from the
written communications and oral statements provided to it, it is now for the
Commission to put forward its conclusions on the complaints which the
Governing Body referred to it for its consideration.

I. Terms of reference of the Commission

529. Article 28 of the Constitution of the ILO provides that the Commission
shall prepare a report embodying its findings on all questions of fact
relevant to determining the issue between the parties and containing such
recommendations as it may think proper as to the steps which should be taken
and the time within which they should be taken.

530. After the Commission had been appointed and before taking up its
duties, its members made a solemn declaration, in accordance with previous
practice and as had been suggested to the Governing Body by its Officers,
undertaking to perform their duties and exercise their powers "honourably,
faithfully, impartially and conscientiously". In inviting them to make this
declaration, Mr Juan Somavia, Director-General of the International Labour
Office, said in particular: "The task entrusted to you is to establish the
facts without fear or favour and in full independence and impartiality".

531. It is in this capacity as an independent body called upon to make an
objective and impartial evaluation of the issues in dispute that the
Commission has sought to carry out its task.

532. It should be recalled that the role of a Commission of Inquiry, under
article 26 of the Constitution of the ILO, is not confined to an examination
of the information provided by the parties, but that the Commission must
itself take all necessary steps to obtain full and objective information on
the questions at issue, having regard to the public importance of the issues
raised by the complaints. The Commission takes account of national
circumstances, such as the history of labour relations and the social and
economic context. Nevertheless, it is incumbent on the Commission to ensure
that freedom of association principles apply uniformly and consistently
among all countries.

533. As required by its terms of reference, the Commission must, in
accordance with the Constitution of the ILO, record its conclusions and make
recommendations on the substance of the case.

II. Preliminary matters

534. Before proceeding further, the Commission would like to draw attention
to the special character of the case referred to it. The complaints referred
to the Commission of Inquiry were made against a government that was
subsequently replaced by a "government of national unity", largely
incorporating both the previous government and the former opposition. The
new "inclusive Government" was established in the days prior to the swearing
in of the Commission and had the stated aim of working together to overcome
Zimbabwe's problems and moving forward as a nation in a process of healing
and reconciliation. The complaints were submitted in June 2008 and referred
to the Commission of Inquiry in November 2008; the inclusive Government was
sworn in during February 2009.

535. From its first meeting, the Commission of Inquiry was mindful of the
significance of these political developments. In terms of the impact on the
substance of its task, the Commission was of the clear view that it wished
its work to contribute to the process of national healing and
reconciliation. It was mindful of the importance of freedom of association
and collective bargaining rights to a fully functioning democracy and was
pleased to note the commitment of the inclusive Government to promoting and
protecting those rights. The political developments also had an impact on
the practical organization of the Commission's work in that it conducted a
preliminary goodwill mission to the country, supported the development of an
ILO technical assistance programme in the context of the Government's
100-day plan to "get Zimbabwe working", and delayed its on-the-spot mission
until that 100-day plan was completed.

536. In addition, the Commission notes the fact that the matter referred to
it was based on complaints from both Workers' and Employers' delegates to
the International Labour Conference. As such it is unique in the history of
ILO Commissions of Inquiry and illustrates a complementary concern on the
part of both Workers and Employers as to the situation in Zimbabwe. The
Commission has taken this concern into account, which it believes emphasizes
its approach in seeking to support Zimbabwe in its process of national
healing and reconciliation.

537. The Commission wishes to record its appreciation to the Government of
Zimbabwe for the cooperation it provided in respect of the Commission's
work. During both its missions to Zimbabwe, the Commission was able to meet
almost all of the government officials that it had indicated it wished to
meet, with the exception of the President of Zimbabwe, the Minister of State
for National Security, the Director of the Central Intelligence Organization
(CIO) and the Commissioner of the Zimbabwe Republic Police. While the
Government's cooperative attitude is indeed expected as a normal consequence
of recognition of the constitutional obligations undertaken by member
States, the Commission is grateful to the Government for this spirit of
cooperation, which was of significant value to its ability to carry out its
functions and task effectively.

538. The Commission also wishes to thank the more than 300 persons whom it
met in Zimbabwe, South Africa and Geneva for assisting in its work and its
endeavours to collect the most complete information possible. It expresses
its appreciation to the representatives of the workers' and employers'
organizations with whom it had meetings during its time in Zimbabwe and
wishes to acknowledge the more than 100 individual members of trade unions
and employers' organizations whom it met, both for attending meetings with
the Commission and for providing it with comprehensive documentation in
relation to the complaints.

539. As a final point, the Commission wishes to stress that it has taken the
utmost care in the preparation of its report to ensure the confidentiality
of the individual workers and employers with whom it met during its missions
to Zimbabwe. In the part of the report concerning its findings as well as in
these conclusions, the Commission has referred to the statements made by
workers and employers without including details that may allow individuals
to be recognized. It has done this in recognition of the request by most of
the individuals with whom it met for their identities to be kept
confidential and the perception by many that their safety would be
threatened if it was known that they had spoken to the Commission.

540. In this regard, the Commission recalls that it drew the Government's
attention to the need to ensure that those with whom the Commission met
enjoyed full protection against any kind of discrimination, intimidation,
harassment or pressure on account of their meeting with the Commission. The
Commission considers that, despite these precautions, it would be a
significant breach of a country's obligations as a member State of the ILO
if any person were to be victimized for speaking to, or providing
information to, the Commission or to any of the ILO supervisory bodies. The
Commission recalls that the Co-Ministers of Home Affairs guaranteed that
there would be no retribution or retaliation from their Ministry in relation
to the Commission's work in Zimbabwe.

III. Summary of arguments presented by the parties

541. The complainants referred to the systematic subjection of workers'
organizations and their members to intimidation, harassment, interference
and anti-union discrimination by the authorities and to other human rights
violations. The complainants alleged a denial of the right to strike and
violation of the right to demonstrate through the systematic arrests,
detentions and physical violence committed against their members in
connection with the exercise of their trade union rights. The complainants
were concerned with the lack of protection of civil liberties and trade
union rights in Zimbabwe. In this regard, the Commission records that
workers in Zimbabwe only very rarely directed complaints against their
employers, but that instead officials and members catalogued instances of
their trade union rights being breached by the authorities.

542. By and large, there is little disagreement between the complainants and
the Government of Zimbabwe in relation to the veracity of many of the
allegations and it is important to acknowledge and act on them. That is, the
Government of Zimbabwe accepted that "things" had happened, that these
"things" were regrettable, and that it was important to ensure that such
"things" did not happen again. There was a certain amount of disagreement
between the complainants and the Government as to the extent of the
regrettable events and their causes, with many in the Government asserting
that the reason that the ZCTU was targeted was due to its involvement in
politics which exceeded its proper trade union role. Most importantly,
government officials categorically and unanimously argued that these events
were a matter of the past and that the allegations did not describe a
current situation. They asserted that the entire country was involved in a
process of national healing and reconciliation which would ensure that such
things did not happen again. In comparison, the complainants pointed to a
number of instances in which they alleged that freedom of association rights
had been breached since the establishment of the inclusive Government.

IV. Conclusions on the substance of the case

543. To allow a clear understanding of the issues at hand, the Commission
has grouped its conclusions under the following three headings: freedom of
association and civil liberties; freedom of association in law and practice;
and the systematic and systemic nature of the matter.

A. Freedom of association and civil liberties

544. The Commission feels obliged to start its substantive conclusions by
emphasizing the importance it attaches to the principle affirmed in 1970 by
the International Labour Conference in its resolution concerning trade union
rights and their relation to civil liberties, which recognizes that "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 in 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".

The right to security of the person

545. The Commission of Inquiry heard numerous statements that illustrated
severe violence against trade unionists and explicit or implicit acceptance
by government officials that such violence had occurred. The Commission was
told of many instances in which trade union officials and members were
severely beaten and, in some instances, tortured by members of the security
forces and the ZANU-PF militia, resulting in serious and long-lasting
physical and psychological injuries for many trade unionists, and the death
of some. The Commission was concerned to hear allegations that family
members of trade unionists were in some instances also victims of violence.
It was also provided with information suggesting a significant psychological
impact on family members, and most worryingly children, of the violence
committed against trade unionists.

546. Violence has been a common response to the exercise of the rights to
strike and demonstrate and to trade union membership of some workers'
organizations. The environment of fear induced by threats to the life and
liberty of trade unionists in Zimbabwe had inevitable repercussions on the
exercise of trade union activities. The threat of violence felt by many
trade unionists was exacerbated by the general violence in, and high degree
of polarization of, Zimbabwean society.

547. In this regard, the Commission notes with particular concern the
statements that it heard in relation to the complaints of torture of a group
of teacher trade unionists on ZANU-PF premises, as well as the severe
violence committed against national and local trade union leaders in the
context of the 13 September 2006 nationwide demonstration. It also wishes to
indicate its serious concern with the effect of the threat of violence
against farm workers, which is accentuated by the impact on such workers of
the loss of their livelihoods and homes. The Commission is also concerned
about the lack of protection of displaced farm workers, particularly in view
of their vulnerability.

548. The Commission stresses that the climate of violence and uncertainty
that has existed in Zimbabwe seriously hampers the operations of a genuinely
free and independent trade union movement.

The right to be free from arbitrary arrest and detention

549. Many incidents of violence were committed during the arrests and
detentions of trade unionists. The Commission heard harrowing accounts of
mass arrests, detentions and torture in police holding cells from trade
union officials and members from throughout Zimbabwe. Trade unionists were
beaten, interrogated, tortured and threatened in custody, and detained in
conditions that the Commission can only conclude were calculated to
dehumanize, psychologically harm and deter the detainees from the future
exercise of their trade union rights.

550. In this regard, the Commission was made aware of a judgment of the
Supreme Court of Zimbabwe in which it described the conditions within which
the ZCTU Secretary General was detained in 2002. It notes the Court's
finding that the conditions in the holding cells at Matapi police station in
Harare constituted inhumane and degrading treatment. The Commission is bound
to observe that the conditions described in that judgment appear to be
representative of current conditions in police holding cells throughout
Zimbabwe, with no improvements evident in the statements of the many trade
unionists who described their own detentions in the years since 2002.

551. The Commission is particularly concerned by the allegations that the
authorities apparently routinely moved trade unionists around police
stations in an attempt to prevent their families and trade union
representatives from finding them so as to provide medical and legal
assistance and food, which would otherwise not be provided in Zimbabwean
detention centres.

It is also concerned by the description of the police rules whereby
detainees are obliged to wear only one layer of clothing and no shoes or
socks, regardless of the weather, and the particular impact of the
conditions in the cells on women detainees. The insanitary conditions in
police holding cells are all the more disturbing given the prevalence of
cholera in the country.

552. In these circumstances, the Commission regrets that it was not able to
meet the Police Commissioner and to learn whether there were any plans for
the improvement of conditions in police holding cells.

Guarantee of due process of law

553. The Commission considers that an aggravating factor in the violence,
arrests and detentions of trade unionists was that most often either no
charges were laid in connection with those detentions or any charges that
were laid were unfounded and so dismissed by the Court at its first hearing.
In this regard, the Commission received a statement on the absence of
convictions in relation to the hundreds of arrests and detentions of trade
unionists in Zimbabwe in recent years. The Commission can only conclude that
detention in police holding cells, accompanied by sporadic violence by the
CIO and ZANU-PF militia, was solely a systemic and systematic method of
harassment and intimidation of trade unionists in Zimbabwe.

554. The Commission heard many statements concerning significant delays in
the legal process or delays in decisions being reached by courts, including
one current instance when trade unionists had been required to appear in
court 20 times in one year in relation to a detention during the 3 December
2008 ZCTU demonstration. The Commission was also informed of concerns
relating to the enforcement of court orders and an apparent assumption that
such orders will not be enforced. Many trade unionists stressed that, even
when they identified the perpetrators of violence, no actions to investigate
and prosecute were taken.

555. The Commission reiterates that the absence of judgments against the
perpetrators of atrocities creates a situation of impunity, which reinforces
the climate of violence and insecurity and is extremely damaging to the
exercise of trade union rights. The Commission must stress that the
guarantee of due process of law is an essential requirement for the exercise
of trade union rights. Thus, any trade unionists who are detained should be
released or immediately brought before a court and have full access to
lawyers and legal advice.

556. The Commission is deeply concerned at the impression given to trade
unionists that the higher judiciary was biased and the legal system was
partisan. It notes that government officials emphasized the independence of
the judiciary, while admitting some problems in the execution of justice,
such as delays and problems with enforcement, largely caused by human
resource and financial constraints. It goes without saying that the
guarantee of judicial independence and rule of law is crucial for the
protection of all civil liberties, including freedom of association rights,
and that without a fully independent and credible court system a sense of
lawlessness and lack of protection will exist. In this regard, the
Commission wishes to state that what matters is not only that justice is
done, but that it is seen to be done.

557. The role of the court system in relation to the guarantee of trade
union rights cannot be overemphasized. The Commission is of the opinion that
a properly resourced, speedy and independent judiciary would help to create
a context in which the violation of trade union rights is not tolerated, and
would also have a role in ensuring that appropriate measures, including
compensation for damages suffered and the sanctioning of those responsible,
are taken to ensure that there is no repetition of violations in the future.
The existence of full rule of law in Zimbabwe would bring a sense of
certainty to the country, which would not only assist in ensuring civil
liberties, but also in economic and social revival.

Rights of assembly and demonstration

558. Many of the arrests and detentions of trade unionists occurred in the
context of the exercise by trade unions of their rights of assembly and
demonstration. In this regard, the Commission heard statements of a pattern
of disruption of trade union events by the authorities.

559. In relation to both trade union meetings and public demonstrations
organized by trade unions, the Commission was informed that the operation of
the POSA in practice seriously interfered with the right of trade unions in
relation to such events. While being aware that the POSA did not formally
apply to trade unions carrying out trade union activities, the Commission
was informed that it had been held, in practice, to apply to most trade
union gatherings.

560. The basis for this application appears to be the belief by the
authorities that the ZCTU was exceeding its trade union role when it
organized public demonstrations on matters touching upon social and economic
issues. The Commission wishes to categorically state that the exercise by
trade unions of the right to demonstrate includes the right to freedom of
expression in relation to matters of social and economic issues. In this
regard, the Commission must reiterate the principle developed by the ILO
supervisory bodies that the freedom of expression which should be enjoyed by
trade unions and their leaders should also be guaranteed when they wish to
criticize the Government's economic and social policy.

561. The Commission received much documentation and many statements
concerning the way in which the requirement under the POSA of permission
being granted by the police for trade union gatherings violated the
Conventions. The Commission was told that ZCTU public meetings and
demonstrations were almost uniformly refused by the authorities, and that
trade union meetings, labour forums and conferences were, if allowed,
subjected to the imposition of stringent conditions. In addition, the
Commission is aware of the penal sanctions applicable to trade unionists who
are found to be in contravention of the POSA and considers this to be a
serious impediment to the right to demonstrate.

562. In this regard, the Commission is of the opinion that the way in which
the POSA has been used in practice denies trade unions the right to
demonstrate.

The right to protection of trade union premises and property

563. The Commission was informed of instances in which trade union premises
and trade unionists' homes were searched by security forces and ZCTU
materials were confiscated. Often, family members were present during
searches of homes and allegedly were traumatized. Trade union staff present
during searches of trade union premises told the Commission of violence and
threats against them. This often occurred in the lead-up to trade union
demonstrations or in relation to trade union awareness-raising campaigns.

564. In this respect, the Commission recalls that the inviolability of trade
union premises is a civil liberty which is essential to the exercise of
trade union rights. Any search of trade union premises, or of unionists'
homes, without a court warrant constitutes an extremely serious infringement
of freedom of association.

565. The Commission recalls and supports the position of the ILO supervisory
bodies that respect for fundamental human rights, including the right of
trade unionists to hold meetings, freedom of opinion expressed through
speech and the press, and the right of detained trade unionists to enjoy the
guarantees of normal judicial procedure at the earliest possible moment, is
an essential prerequisite for the exercise of trade union rights. This
principle applies to all member States of the Organization.

B. Freedom of association in law and practice

566. The Commission recalls that all member States of the ILO, by virtue of
their membership, have accepted the obligation to ensure respect for the
principles of freedom of association. Conventions Nos 87 and 98, which the
Government of Zimbabwe has freely ratified, must be applied and fully
implemented in law and practice.

The right to organize of public servants

567. The Commission observes that article 21 of the Constitution of the
Republic of Zimbabwe provides that no one should be hindered in his or her
right to freedom of assembly and association and, in particular, to
establish and belong to trade unions and other associations for the
protection of his or her interests.

568. Despite the importance accorded to the right to organize in Zimbabwe,
the Zimbabwe Labour Act 2003 does not apply to the members of the public
service, defined by section 14 of the Public Service Act as all persons in
the service of the State. As a result, public servants in Zimbabwe do not
have a right to form and join trade unions, nor do their organizations enjoy
the consequent rights to collective bargaining and strike. In this regard,
the Commission recalls that the Apex Council representing workers in the
public service indicated the inability of public servants to organize and
the discretion on the part of the authorities as to whether or not to
recognize their associations. The Deputy Commissioner of Prisons likewise
informed the Commission that prison officers, although not falling within
the scope of the Public Service Act, were a disciplined force and so did not
enjoy the right to organize.

569. The Commission takes due note of the Government's declared intention to
reform the law in relation to the basic labour rights of public servants by
harmonizing the Labour Act and the Public Service Act. The Commission is
pleased to note the Government's stated commitment to ensuring that the
right to organize is extended to public servants in the near future. It
considers it significant that steps have already been taken in this regard,
taking advantage of technical assistance offered by the ILO during July
2009.

570. Despite this, however, the Commission was unable to obtain firm
information as to the status of legislative amendments to harmonize the
labour law. In addition, the Commission is concerned to note that all
workers' and employers' organizations that it met believed that their
opinion had not been sufficiently taken into account. The Commission notes
that, as at 18 December 2009, it has received no information relating to
legislative amendments to the Public Service and Labour Acts, and so it can
only assume that the harmonization process is somewhat delayed.

571. The Commission reiterates that all workers, without distinction
whatsoever and without previous authorization, should enjoy the right to
establish and join trade unions of their own choosing for furthering and
defending their occupational and economic interests. Convention No. 87
guarantees the right to organize to employees in the public service,
including prison officers. The Commission considers that the current
legislation in Zimbabwe is not in full conformity with Article 2 of
Convention No. 87 in so far as public servants are denied their right to
organize.

The right to strike

572. The right to strike is recognized by the Zimbabwean Labour Act. The
Commission notes however that many representatives of workers' and employers'
organizations and labour lawyers recognized that the right to strike could
not, in practice, be exercised. It was explained to the Commission that it
was very difficult for a strike to be declared lawful under the Labour Act.
The procedure was described as cumbersome and extraordinarily slow. Further,
the Commission was made aware of the excessively wide definition of
"essential services" in Zimbabwean legislation, which meant that a
significant number of workers had no right to strike.

573. The Commission notes that as strikes are usually, if not always, found
to be unlawful in Zimbabwe, striking workers are routinely subject to the
sanctions set out in the Labour Act for illegal strikes - and these
sanctions include fines, dismissal and penal sentences for individuals, and
fines and deregistration for trade unions. The Commission was told that
large numbers of workers have been dismissed from their employment on
account of taking industrial action, and that this has had a significant
effect on their lives, and that of their families, in the context of the
economic and social crisis in Zimbabwe. It notes with concern that often
members of workers' committees and trade union officials and members were
singled out for dismissal in the aftermath of a strike.

574. The Commission must highlight its particular concern at the information
it received concerning the routine use of the police and army against
strikes. In particular, the Commission was presented with information
concerning the shooting of striking workers in 2001, leading to injuries and
deaths. The Commission is deeply disturbed by the information that it
received that security forces opened fire on striking workers in the mining
sector in September 2009, less than a month after it left the country.

575. In light of the above, the Commission is obliged to observe that the
right to strike is not fully guaranteed in law or practice. In particular,
the Commission is concerned that the legislation includes disproportionate
sanctions for the exercise of the right to strike and an excessively large
definition of essential services; and that in practice the procedure for the
declaration of strikes is problematic and that it appears that the security
forces often intervene in strikes in Zimbabwe. The Commission wishes to
confirm that the right to strike is an intrinsic corollary of the right to
organize protected by Convention No. 87. Interference

576. The Commission was told of serious interference in ZCTU meetings and
demonstrations, most particularly through the requirement in practice that
trade unions seek the permission of the police to hold such gatherings. The
Commission was concerned at the complaint that members of the secret
services were present at all ZCTU meetings, either overtly or covertly. In
this regard, it was not surprised to be told that members of the ZCTU often
did not wish to actively participate in meetings on account of the presence
of CIO operatives.

577. A number of ZCTU officials and members stated that when their homes or
trade union premises had been searched, trade union materials had been
confiscated, without court orders. These materials included posters, flyers,
T-shirts and caps.

578. It was also indicated to the Commission that the legislation allowed
interference by the authorities in the financial affairs of trade unions
(Labour Act, section 120(2)), and that this power had been used in relation
to a financial investigation of the ZCTU in 2006. The Commission understands
that the investigation involved the seizure of ZCTU financial and
administrative documentation and affected its ability to function normally
during that time. The Commission also noted concerns with legislative
provisions concerning the supervision of the elections of trade union
officers (Labour Act, section 51); the regulation of trade union dues
(Labour Act, sections 28(2), 54(2) and (3) and 55) and the disposal of union
dues by limitations on the staff that trade unions may employ and the
equipment and property that they may purchase (Labour Act, section 55).

579. The Commission took particular note of the allegation that the Reserve
Bank of Zimbabwe had established a parallel bank account into which funds
sent by foreign donors to the ZCTU were transferred. The Commission was told
by the ZCTU that it was not able to freely access that money, and that a
significant amount of money had been held in this way for one year, until it
was released the day after the Commission's first meeting with the ZCTU
during its on-the-spot mission in August 2009.

580. The Commission was deeply concerned at statements that potential
"witnesses" to the Commission had been identified by the CIO before its
on-the-spot mission, and had been threatened that they should not
participate in the Commission's work. The Commission was made aware that,
when it was drawn to her attention, the Minister of Labour and Social
Services sent a letter to the Minister of State for National Security
seeking his urgent intervention to prevent the repetition of such actions.

581. The Commission wishes to stress that public authorities should refrain
from any interference which would restrict the right of workers'
organizations to organize their activities and to formulate their
programmes, or which would impede the lawful exercise of this right. The
freedom to organize their administration is not limited to strictly
financial operations, but also implies that trade unions should be able to
dispose of all their fixed and movable assets unhindered and that they
should enjoy inviolability of their premises, correspondence and
communications. It is clear to the Commission that the right of trade unions
to be free from interference by the public authorities has been violated in
law and practice in Zimbabwe.

Acts of anti-union discrimination

582. A number of trade union officials and members alleged that they had
been dismissed or transferred on account of their trade union activities. In
some cases, it was alleged that pressure had been put on their employers by
the security forces or ZANU-PF members. In the case of farm workers who had
allegedly been dismissed on account of their trade union activities, this
also resulted in eviction from their homes. The Commission was particularly
concerned at the plight of the former farm workers from Wilton Farm, who had
been dismissed, evicted and threatened in 2009.

583. In addition, the Commission was made aware of instances in which
teachers were transferred out of rural districts on account of their
membership of PTUZ, and was informed that the union's president had been
dismissed and believed that he could no longer be employed by any state
university. The Commission also heard from a ZCTU member who alleged that
his dismissal had anti-union motivation and that he was still awaiting the
first court decision in his case in August 2009, six years after his
dismissal. In this regard, the Commission is mindful of statements from
EMCOZ and other interlocutors that the option of reinstatement of dismissed
workers is unlikely in Zimbabwe, and that the amount of damages awarded will
not compensate for the loss of pay.

584. The Commission was disturbed to hear of a number of instances in which
large numbers of striking workers were dismissed. Most notably, it was
explained that 1,403 workers from TelOne, 1,020 workers from ZimPost and 56
workers from NetOne were dismissed in 2004. The Commission was told of
dismissals of workers' representatives following strikes in February and
June 2009.

585. The Commission concludes that there is no adequate protection against
anti-union discrimination in Zimbabwe. The Commission emphasizes that no one
should be subjected to discrimination or prejudice because of legitimate
trade union activities or membership. With reference to the mass dismissals
of strikers in Zimbabwe, the Commission considers that these involve a
serious risk of abuse and place freedom of association in grave jeopardy.

586. By virtue of its ratification of Convention No. 98, the Government of
Zimbabwe is responsible for preventing all acts of anti-union discrimination
and must ensure that complaints of antiunion discrimination are examined in
the framework of national procedures which should be expeditious - so that
the necessary remedies can be really effective - inexpensive and fully
impartial, and considered as such by the parties concerned. In other words,
where cases of alleged anti-union discrimination are involved, the competent
authorities dealing with labour issues should begin an inquiry immediately
and take suitable measures to remedy any effects of anti-union
discrimination brought to their attention. In this regard, the Commission
stresses that the remedy of reinstatement should be available to those who
are victims of anti-union discrimination and, if reinstatement is not
possible, the Government should ensure that the workers concerned are paid
adequate compensation which would represent a sufficiently dissuasive
sanction for anti-trade union dismissals.

Collective bargaining and social dialogue

587. The Commission was informed of a number of legislative problems in
relation to collective bargaining in Zimbabwe. While section 74 of the
Labour Act provides that trade unions may bargain collectively and that
collective agreements can "regulate conditions of employment of mutual
interest to the parties", later sections of the Act empower the Minister to
both issue regulations on an extensive list of matters including conditions
of employment and to direct the Registrar not to register an agreement "if
any provision appears to the Minister to be inconsistent with legislation or
unreasonable or unfair". Further, the Minister can "direct the parties to
negotiate an amendment" to a registered collective agreement if it contains
a provision "that is, or that has become, inconsistent with legislation in
force or is unreasonable or unfair". The Minister may then amend the
agreement in accordance with the proposed amendment, or "in such other
manner that is consistent with the considerations of legislative
consistency, reasonableness and fairness". In addition, the legislation
provides that disputes of interest in the essential services that have not
been settled within 30 days or such other period as agreed by the parties
will be referred to compulsory arbitration. In other disputes, either party
can apply to the Labour Court.

588. Both workers and employers whom the Commission met indicated that the
economic climate had rendered collective bargaining ineffective, although
the structures were still valid and functioning. EMCOZ explained that
governmental economic policies had detrimentally affected collective
bargaining by creating a situation in which employers were unable to accede
to workers' demands. In some instances, the Commission was told, employers
refused to bargain collectively and in state-owned or controlled industries,
it was stated that there was no real collective bargaining as the Government
imposed figures in wage negotiations. For public servants, there are no
collective bargaining rights.

589. The Commission wishes to stress that all workers, including public
servants, should be entitled to bargain collectively to determine their
conditions of work. Only public servants, who by their functions are
directly engaged in the administration of the State (that is, civil servants
employed in government ministries and other comparable bodies), as well as
officials acting as supporting elements in these activities, can be excluded
from the protection of Convention No. 98. Furthermore, the Commission
emphasizes that freely negotiated collective agreements should not be
subject to ministerial approval. Legislation that allows the authorities
full discretion to deny approval of a collective agreement makes the entry
into force of the collective agreement subject to prior approval, which is a
violation of the principle of autonomy of the parties.

590. The Commission is concerned at the impact of the economic situation on
collective bargaining in practice, and notes that otherwise the collective
bargaining arrangements largely appear to operate to the satisfaction of the
Government and social partners.

591. In relation to social dialogue, the Commission notes that while the
Tripartite Negotiating Forum (TNF) exists for institutionalized social
dialogue, it does not appear to be functioning properly due to a lack of
trust on the part of the social partners. In this respect, the Commission
notes with interest the positive impact of the technical assistance provided
by the ILO in July 2009. It appears that the high-level tripartite retreat
and study visit to the social dialogue institution in South Africa, NEDLAC,
were helpful in assisting the parties to reach agreement on the need to
reform the TNF, and to commence steps in that direction.

592. The Commission emphasizes the importance of social dialogue for
democracy and the achievement of harmonious labour relations in any country.
It wishes to express its firm hope that efforts will be made to capitalize
on the first steps in relation to the social dialogue institution in
Zimbabwe, so that a fully functioning body with the confidence of all
parties is soon in existence.

C. Systematic and systemic nature of the matter

593. As set out in the conclusions above, the Commission heard many and
similar stories of serious violation of freedom of association rights from
trade unionists from different sectors and different locations throughout
the country. This information suggests that the violation of the Conventions
in the country was systematic and even systemic.

594. The Commission sees a clear pattern of arrests, detentions, violence
and torture by the security forces against trade unionists that coincided
with ZCTU nationwide events, indicating that there had been some centralized
direction to the security forces to take such action. The Commission is of
the opinion that there was another clear pattern of control over ZCTU trade
union gatherings, be they internal meetings or public demonstrations through
the application of the POSA. The Commission believes that the intimidatory
nature of the detentions of trade unionists is evident in the fact that they
were often for short amounts of time, were accompanied by violence and
threats and did not lead to convictions in court.

595. The Commission is particularly concerned by the fact that it appears
that, in rural areas in particular, ZCTU officials and members were
systematically targeted by vigilante mobs, based on a perception that all
ZCTU members were supporters of the MDC political party. The Commission was
told that this targeting involved significant violence, as well as
anti-union discrimination in the workers' employment, with pressure being
put on employers by ZANU-PF militia or the CIO. The leadership of the ZCTU
and its affiliate organizations were likewise targeted, with what appears to
the Commission to be a calculated attempt to intimidate and threaten ZCTU
rank-and-file members.

596. The Commission understands that the effect on trade unions of the
systematic arrests, detentions, violence, torture and targeting was severe.
The Commission was told of an impact in terms of membership of the
ZCTU-affiliate organizations and of a serious financial impact, both from
the decrease in trade union dues being paid to the organizations and in
terms of the cost for the organization in responding to the mass arrests and
detentions. The Commission is aware of difficulties in recruiting officials
for some affiliate organizations, and of pressure being put on trade union
officials by their families for them to leave the ZCTU. The Commission must
record its impression that there are a large number of extraordinarily
courageous and committed trade unionists in Zimbabwe who are dedicated to
the trade union cause.

597. At the same time, the Commission is mindful of the steps that have been
made in recent months towards the attenuation of these issues. The
Commission considers that the signing of the GPA, the establishment of the
inclusive Government and the commencement of a process of national healing
and reconciliation are positive steps in the future of Zimbabwe. The
Commission is pleased to note that all those whom it met shared the belief
that social dialogue is the only way forward.

598. The Commission is of the firmly held view that the bridge to the future
cannot be built without tackling the systemic reasons for the violations of
the Conventions. This would help the process of national healing and
reconciliation. The Commission must stress that an acknowledgement of what
happened is a fundamental prerequisite for Zimbabwe to be able to create a
future society in which such serious violations of the freedom of
association and collective bargaining Conventions are not repeated. In this
regard, the Commission feels compelled to record its deep concern at reports
that it has received of significant continued harassment of trade unionists
through arrests, detentions and the breaking up of strikes and
demonstrations in the months following its on-the-spot mission. Such events
are all the more deplorable given the apparent assurances made to the
Commission in August that Zimbabwe was moving forward, in a different and
more positive direction.

23. Recommendations

599. Having recorded our findings on the questions submitted to us, we
proceed to make our recommendations. In doing so, our conclusions on the
need to tackle the systemic reasons for the violations of the freedom of
association Conventions, and the importance of that in any process of
healing and reconciliation, are uppermost in our mind.

600. The scale and duration of the systematic and systemic violations of
trade union and human rights in Zimbabwe raise serious questions about the
international responsibility of those who have led and perpetrated these
atrocities. The mandate of the Commission of Inquiry is to consider the
implementation of ILO Conventions and we have kept within this framework.

I. General comments

601. We wish to reiterate that we have sought to pursue our mandate in the
established judicial manner of ILO Commissions of Inquiry, while keeping in
mind the efforts under way in Zimbabwe in pursuance of the Global Political
Agreement. It is only if this agreement is implemented in good faith by
everyone that it could help steer Zimbabwe on a new course towards stability
and progress in the interests of its people.

602. The Commission hopes that the following recommendations would help in
building a bridge between the past and a future Zimbabwe in which the
freedom of association Conventions are respected in letter and spirit. In
this regard, we are mindful of the role that the process of the Commission
has played in allowing Zimbabweans to tell their stories, and hope that this
will assist the country in moving forward.

603. For Zimbabwe to live in peace with itself and to prosper, it has to
arrive at a point of truth and reconciliation with the past. Healing has to
be achieved in a manner which respects the norms of justice. The future
cannot be built on either vengeance or on disregarding injustices of the
past. All parts of society have to come together to decide how to deal with
their heavy inheritance. In order to bear fruit, and to enable Zimbabwe to
rise and realize its potential, this process has to be truly inclusive and
respect those who have suffered for standing up and claiming their rights.

604. The responsibility to protect human rights is now one of the
fundamental principles of modern international law. The Government of
Zimbabwe will need to examine urgently what should be done to uphold this
principle in Zimbabwe in future. In particular, it should be borne in mind
that a State has a legal duty to take reasonable steps to prevent human
rights violations - in this instance, particularly violations of the freedom
of association and collective bargaining Conventions - and that the links
between freedom of association, human rights and democracy cannot be
overemphasized.

II. Recommendations

605. Recalling that the Commission's mandate allows us to set out the time
frame within which the recommendations should be implemented, we are of the
opinion that they can, and should, be carried out without further delay. In
particular, the Government should ensure that decisive action is taken with
a view to the full implementation of these recommendations in time for it to
report to the Committee of Experts in 2010, under article 22 of the
Constitution of the ILO, concerning the measures it has taken to give effect
to the provisions of the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98).

606. Looking to the future, and in a spirit of confidence building and
reconstruction, we believe that it would be helpful to Zimbabwe for the
Government to implement the following recommendations:

1. The Commission recommends that the relevant legislative texts, and most
particularly the Labour Act, the Public Service Act and the Public Order and
Security Act, be brought into line with Conventions Nos 87 and 98, as
requested by the ILO supervisory bodies and noted throughout this report.

2. The Commission recommends that all anti-union practices as set out in our
findings - arrests, detentions, violence, torture, intimidation and
harassment, interference and anti-union discrimination - cease with
immediate effect and that steps are taken by the authorities to ensure that
there is no repetition of such acts in the future. The Commission further
recommends in this regard that steps be taken to bring all outstanding and
pending court cases against trade unionists to an end.

3. The Commission recommends that, mindful of the role that its process
played in allowing people to be heard, other national institutions continue
this process so that trade unionists and perpetrators participate in a
national process of truth and reconciliation. In particular, noting that the
Zimbabwe Human Rights Commission and the Organ for National Healing and
Reconciliation could play an important role in this regard, the Commission
recommends that the Human Rights Commission be rendered operational as soon
as possible and that the Government ensure that these institutions are
adequately resourced so that they may contribute to the defence of trade
union and human rights in the future.

4. The Commission recommends that the Government ensure that training,
education and support be given to key institutions and personnel in the
country, most notably the police, security forces and the social partners,
in relation to freedom of association and collective bargaining, civil
liberties and human rights.

5. The Commission wishes to stress the essential place of the rule of law
and the role of the courts in ensuring that an environment exists in the
country in which freedom of association and collective bargaining may be
enjoyed in practice. The Commission particularly recognizes the special role
that could be played by the Labour Court. In this regard, the Commission
recommends that the Government take steps to reinforce the rule of law and
the role of the courts in Zimbabwe by ensuring that the courts are respected
and properly resourced in material and human terms, and that training,
education and support in relation to freedom of association and collective
bargaining, civil liberties and human rights are provided to members of the
judiciary and court staff at all levels of the court hierarchy.

6. The Commission recommends that the Government continue to strengthen and
support social dialogue in the country in recognition of the role that
social dialogue plays in the maintenance of democracy.

7. The Commission recommends that the Government take advantage of technical
assistance by the International Labour Office in relation to the
implementation of these recommendations. We urge the ILO to pursue its
assistance to the Government and social partners in this regard.

III. Concluding observations: The path to truth, reconciliation and justice

607. We wish to record that it was an honour to participate in the
Commission of Inquiry on Zimbabwe's observance of Conventions Nos 87 and 98
at the present stage of the history of Zimbabwe. We were conscious of the
challenge facing Zimbabwe: how to build a bridge from division and social
tension to a peaceful and just future. The Commission is convinced that
democracy, the rule of law and respect for human rights are prerequisites
for the full exercise of freedom of association and collective bargaining
rights. The implementation of those two Conventions equally paves the way to
genuine democracy.

608. The Commission witnessed a country in deep crisis. We firmly believe in
a positive future for Zimbabwe, most particularly in light of the human and
natural resources at its disposal that we were fortunate to see during our
visits to the country. The move towards truth, reconciliation and justice
needs to be sustained and we trust that the Commission's report will
contribute to this process.

609. The Prime Minister of Zimbabwe told the Commission when it met him that
Zimbabwe was operating in a spirit of "never again" as far as the violations
of the past were concerned. "Never again" requires acknowledging the past,
drawing lessons from it, and putting in place measures to prevent the
recurrence of past violations. All Zimbabweans should rise up, stand for,
and uphold the responsibility to prevent future violations of human and
trade union rights. The President of Zimbabwe, who led the fight for his
country's independence, can once again lead it to higher ground. The rule of
law, democracy and respect for human rights beckon Zimbabwe to higher
ground.

Zimbabweans expect, and deserve it.

Geneva, 18 December 2009 Raymond Ranjeva, Chairperson

Evance Kalula

Bertrand Ramcharan

The members of the Commission wish to thank the members of the secretariat,
Ms Anna Donsimoni Pouyat, Ms Lisa Tortell, Ms Oksana Wolfson and Ms Anitha
Nagarajan for the exceptional assistance they have provided to the
Commission throughout its work. We wish, in particular, to express our
appreciation of their extensive research, valuable insights, administration,
organizational and secretarial support from which we have, collectively and
individually, greatly benefited in our preparation of this report.

The Commission also wishes to acknowledge its deep appreciation of the
unstinting support provided from the most senior level of the International
Labour Office through the diplomatic efforts and astute analysis provided by
Mr Kari Tapiola, Executive Director, Standards and Fundamental Principles
and Rights at Work, Ms Cleopatra Doumbia-Henry, Director of the
International Standards Department, and Ms Karen Curtis, Deputy Director and
responsible for freedom of association.

Lastly, the Commission wishes to offer a special thanks to the acting
Director of the ILO Subregional Office in Harare, Mr Alphonse Tabi-Abodo, Mr
Limpho Mandoro and the other staff of the Harare Office, as well as to Mr
Vic van Vuuren, Director of the ILO Pretoria Office, for the great
assistance they have provided throughout its operations in the country and
the region. - ZimOnline