Online Reporter
Zvamaida Murwira-Senior Reporter
THE State Services Bill, which seeks to establish a fund to ensure members enjoy a decent standard of living in their retirement through the provision of pensions, gratuities and other benefits, faces nullification after the Parliamentary Legal Committee issued an adverse report on some provisions, which it felt violated the Constitution.
The committee felt that the Bill moved beyond its constitutional core to include those who were not hired by the Public Service Commission, such as local government employees and the staff of other State commissions who would not be represented on the governing body of the pension fund. National Assembly Deputy Speaker Cde Tsitsi Gezi has since notified the House of the adverse report.
The committee, chaired by Mudzi South MP, Cde Jonathan Samkange (Zanu PF), is an arm of Parliament that scrutinises Statutory Instruments and Bills to determine whether they are consistent with the Constitution. Usually, after such an adverse report, Parliament makes drafting changes to bring the Bill into alignment with the Constitution unless it is dead certain that the Constitutional Court will find that the committee erred.
The Bill, which has since been tabled before Parliament for debate, establishes a State Service Pension Fund, whose objective is to provide money for the payment of pension benefits to members, former members, and their dependants, as and when they become due and payable. The Fund is drawn from contributions by members and the State, and all sums arising from the investment of money in the Fund.
Parliament is now expected to debate the adverse report issued against the Bill, and if it is adopted, the Bill will become null and void and of no legal force or effect.
In its report, the PLC noted that Clause Two of the Bill defined “approved services” to include other departments that did not fall within the employment of the Public Service Commission, such as local authorities, constitutional commissions, and the service of Parliament.
“The definition of ‘approved service’ is meant to govern relations between the Ministry and other institutions that do not fall under the employment of the Public Service Commission. However, ‘approved service’ is being used to usurp the mandates of independent entities established under the Constitution.
“It violates Section 2, which affirms the supremacy of the Constitution, by creating a parallel framework that overrides constitutionally defined roles. The founding values and principles established by Section 3 of the Constitution are breached through the erosion of transparency, accountability, and devolution,” reads the report.
It was noted that the Bill, as currently constituted, includes other departments such as the Judicial Service Commission, Defence Service Commission, service of Parliament, and Constitutional Commissions, which have the authority to fix and regulate their own conditions of service, right to fix salaries, and other benefits.
“Collectively, this definition undermines the constitutional architecture of separation of powers, institutional independence, and lawful governance,” reads the report.
It was noted that Clause Seven created the State Pension Fund Board, and of its 11 members, none were drawn from the Judiciary or Parliament.
“They are all drawn from various offices within the Executive. Once again, this clause instils unitary power to make decisions regarding the pensions of individuals who already have regulatory bodies, contradicting the Doctrine of Separation of Powers of Section 3(2)(e) of the Constitution,” the report further states.
The report also called for the need to rationalise the powers of the responsible Minister to accommodate views from other arms, such as the PSC. Other sources of the Fund, according to the Bill, will be contributions by members and the State, and all sums arising from the investment of money in the Fund and any other sums that may vest in or accrue to the Fund.
All contributions shall cease to be part of the Consolidated Revenue Fund to form part of the Fund once the Bill becomes law. Clause 22 of the Bill protects pension benefits from being assigned, transferred, ceded, or from being pledged or hypothecated, or from being attached or subject to any form of execution under a judgment or order of the court.
Clause 24 provides for the protection and continuance of a pension where a member is imprisoned, such that the pension may still be paid during imprisonment to the pensioner or to the benefit of any spouse, child, or dependent. Clause 25 provides for the suspension or reduction of a pension benefit where a member is convicted of theft or misappropriation of State property or any misconduct involving fraud or financial prejudice to the State.
The Bill also provides that where a member has been discharged or dismissed from State employment on the grounds of misconduct, the Board may authorise the deduction from any pension benefit payable to him or her of an amount equal to any direct loss which the State sustained as a result of that misconduct.
