adminSharon Hofisi Legal Letters
It is impossible to overstate the importance of assessing the relevance of the May Day or Workers’ Day in Zimbabwe. Workers’ rights matter because the Constitution matters.
The day affords workers a rare opportunity to assert their constitutional rights, speak loudly about the duties of the State and private employers, move for better working conditions, and above all, rest to epitomise the need for various work-related issues such as ordinary leave; compassionate leave; study leave; maternal leave; paternal leave; collective job action including right to strike and sit- ins; collective bargaining agreements; and so forth.
Various trade unions will be selling their ideals to workers, professional, occupations and trade personnel in various areas. At the end of the spectrum are the controversies surrounding workers’ rights. Do we have workers’ rights in Zimbabwe? Well, the question is answered simply by showing that we have labour rights.
While the sections of the Zimbabwean society may sometimes consider May Day to be a political event where trade union leadership has been captured to promote political agendas and not workers’ welfare, May Day can still be considered relevant in promoting key issues surrounding the plight of workers as alluded to above.
Workers are the driving force of any society. According to Shona sayings, “kuguta kushanda”, loosely encouraging hard work so that food can be brought on the table. The Shona people believe that “kupfuma ishungu”, loosely showing that one has to show determination if they are to be rich. When one is envied or transforming their life, proverbial sayings such as “panoguta tsoko makudo haafari” can be used. The zoo language simply draws parallels between monkey businesses and baboon laziness is only meant to encourage hard work.
Zimbabweans across the ethnic and racial divide refer to many instances of relating to the workplace, of labour rights and freedoms, and of the entrenchment and justiciability of such rights. Nevertheless they consider that rights come with responsibilities and duty bearers such as the State must show commitment to uphold the four constitutional duties to respect, protect, promote and fulfil constitutional rights.
Constitutionally speaking, labour rights are part of human rights. Human rights are tenets of democracy. The Constitution of Zimbabwe 2013 has various essential elements that can be used to explain how labour rights must be asserted, enjoyed and claimed.
Firstly, the general preamble to the Constitution (to separate it from the specific preamble on provincial and local government in Chapter 14 of the Constitution) provides a clear starting point. It recognises the need to entrench democracy in Zimbabwe. We have already promoted entrenchment of labour rights by embedding them in Section 65 of the Constitution. We hope to foster these rights as a country simply because Zimbabwe is a unitary, democratic and sovereign republic as is clearly enshrined in Section 1 of our Constitution.
Secondly, our founding values and principles of democracy clearly affirm that Zimbabwe is founded on the respect for fundamental human rights and freedoms; recognition of the inherent dignity and worth of each human being; and due respect for vested rights. Employers in the public sphere such as Government; State institutions and agencies of the State as well as private employers must promote these values at the workplace.
We have recently witnessed the strikes in the medical and nursing professions. Various issues were considered with some concerns of political hands behind the strikes. We have witnessed confrontations and climb-downs in the nurses’ strike for instance. The impasse between the nurses and Government seems to have been resolved with the withdrawal of a court application. We would have loved to see how the courts as final arbiters of constitutional rights were going to say about the constitutionality or legality of the strike and the dismissal of nurses.
In all this, we have to understand and accept that the employer-employee relationship and democratic values go hand in glove. I shall therefore simply refer to the need to observe the principle-based approach to labour rights in Zimbabwe. The logical corollary to this approach is that national labour laws and international human rights instruments must be observed at the workplace. Further, national institutions that promote workers’ rights must be considered as constructive partners at the workplace. Equally important should be the best practices as informed by reports of the International Labour Organisation.
Thirdly, the national objectives in Chapter 2 of the Constitution must be prioritised when dealing with workers’ rights in Zimbabwe. Section 11 affirms the need to foster fundamental rights and freedoms and obligates the State to take all practical measures to protect such rights and freedoms enshrined in Chapter 4 of the Constitution. It also obligates the State to promote their full realisation and fulfilment. Labour rights are clearly enshrined in the Constitution as part of fundamental rights.
The State and labour unions must engage in good faith, with the State upholding its role as the primary duty holder. Most importantly, the objectives speak to the need for empowerment and employment creation. The State, its institutions and agencies are obligated to facilitate and take measures including appropriate, transparent, fair and just affirmative action all marginalised groups in Zimbabwe.
In a constitutional sense, workers are usually marginalised if not vulnerable since they are at the severe mercy of the public or private employer. No wonder our national objectives enjoin the State, its institutions and agencies to, at all times, ensure that appropriate and adequate measures are undertaken to create employment (for vulnerable groups) such as the youths and women.
The national priority lists on work and labour relations are deepened in Section 24 of the Constitution. While the State is allowed a margin of appreciation to provide everyone with an opportunity to work within the limits of the resources available; it is enjoined to demonstrate that efforts were made to secure inter alia: full employment; removal of restrictions that unnecessarily inhibit or prevent people from working and otherwise engaging in gainful economic activities; and so forth.
Above all, the State is obligated to domesticate international instruments such as conventions, treaties and agreements to which Zimbabwe is a party. Incorporating such instruments into domestic law is very important in ensuring that the treaty provisions have legal force or effect in our national law. Our courts will be empowered to make progressive judgments that protect both the workers’ and employers’ rights. Our superior courts have recently pierced into the Zuva Judgment which had been abused by employers to terminate employment contracts on three months’ notice minus reward for the employee’s contribution to the growth of the company.
Further, human rights jurisprudence relating to labour rights can grow in a way which reflects international human rights law, advanced constitutionalism, international best practices and so forth.
Fourthly and most importantly, the Bill of Rights makes labour rights justiciable. Employees are holders of fundamental constitutional rights. This is important because this right is not framed in a manner which makes every person a right holder: women, refugees, permanent residents, expatriates, persons with disability, youths, the elderly, and so forth.
The labour practices and standards must be fair. Put simply, they must promote the full dignity of the worker. Essentially, the employer wants productivity and client-oriented services but must not mortgage the employee to the workplace in a manner that dehumanises him. Doing so is an affront to the constitutional objectives that we agreed as Zimbabweans.
The labour right is variegated in nature. Its scope and meaning relates to several aspects like forming, joining and participating in lawful activities of trade unions and worker associations of their choice; participating in collective job action; entitlement to just, equitable and satisfactory conditions of work alluded to above and so forth. The above came under consideration in the nurses’ strike although the nurses have withdrawn their challenge to their dismissal by Government.
A caveat has to be given here: the Constitution is clear that a law may limit the enjoyment of labour rights. For instance, members of the security services fall into this category. This explains why they are usually called to do duty when civil servants in State institutions or various ministries such as the legal or medical profession exercise their constitutional right to strike.
It may be important to also state in this think-piece that right holders must also consider the general limitations in Section 86 of the Constitution as well as the special limitation in Section 87 of the Constitution. The general limitations include interests of defence, public safety, public order, public morality, and public health or the general public interest and so forth. Section 87 relates to public emergency situations published in the Government Gazette.
The Section 87 limitations may not be imposed on certain rights such as right to life, right to human dignity, right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment, the right to be placed in slavery or servitude, right to a fair trial and the right to obtain an order of harbeas corpus after detention. The latter empowers relatives of the detained person to ask a court of law to compel the detaining authorities to bring the body of the person so that the legality of his detention may be determined in a court of justice.
Other constitutional freedoms worth considering in relation to May Day are freedoms of profession, trade and occupation. These freedoms are protected in Section 64 of the Constitution and are framed in a way which allows every person to assert them. We have several recognised professions from times of old such as pastoral, teaching, legal and medical professions.
We have witnessed the protection of rights of occupations such as commercial sex workers through a judgment by consent where the State and lawyers for commercial sex workers agreed not to criminalise loitering for the sake of prostitution where no man is willing to testify that funds for sexual intercourse were solicited from him.
We still wait to witness the proper realisation of rights of informal traders who also form the bulk of contributors to Zimbabwe’s revenue. We have seen the National Social Security Authority (NSSA) taking a step to protect the informal traders’ pension rights. We hope sirens of hope are to be heard towards formalising the informal trade sector during future May Days.
Sharon Hofisi is a lecturer of Law and Public Administration. [email protected]
Online Reporter