By Mangosuthu Mbele| At the time of his entrance into politics, less than 5 months from launching out as a leader, VP Constantino Chiwenga has started badly, very badly- beginning by crucifying himself against all common logic. The man who the whole country called General Bae, and who all women cried out for, has extinguished the flickering flame around his name.
Can VP Chiwenga hire and fire at will?
Section 65 of our constitution gives right to workers other than “security forces “ to partake in industrial action which may include but not limited to LAWFUL sit-in, demonstration, stay away etc. in order to communicate their grievances to their employer.
Section 65(2) also allows formation of labor groups such as ZNA (Zimbabwe nurses association) or ZCTU, ZIMTA etc. and it also allows any members of labour force “except security forces” (which includes the military, police, CIOs, prison services and their subsidiaries) to join any lawful recognized labour group for a collective labour negotiations on whatever grievances the workers might have.
Nurses, like all other government workers, have been trying to diplomatically engage the employer on the need for better working conditions and pay rise with no significant headway. On the 15th of April nurses then notified their employer of their plans to go on industrial action following the breakdown of their talks. The employer recognized the legal action and responded by engaging the leaders. The meeting yielded nothing hence nurses continued with their two day legal strike.
ENTER THE COMMAND
VP Chiwenga issued a statement on 17th of April 2018 to the effect of “firing all the striking nurses”. That’s was a shocker. In the first place H.E VP Chiwenga breaks every legal route in his proclamation. He negates to quote the section he is basing on to “fire” the nurses. He neglects telling us as well what their crime was because legally the nurses had based their strike on section 65(1) to (5).
This makes the actions of the VP null and void as they are ultra vires to the same constitution he claims to have been protecting when he did a “cousin of a coup” on 15th of November 2017.
CONSTITUTIONAL CONTRADICTIONS
Section 65(3) has a tricky clause stating that though workers are allowed to go on strike but “a law may restrict the exercise of this right (right to withdraw services) in order to maintain essential services”. This section does not define which departments fall under essential services.
However the codification act and presidential powers act (which are acts yet to be aligned with the new constitution) define essential services as to include “any hospital services and any other services declared by president, BY A STATUTORY INSTRUMENT, to be essential services” (Presidential powers act, 2(a)).
If VP Chiwenga used presidential temporary powers act in his proclamation then he erred because as a VP he doesn’t enjoy the presidential powers act, even as acting president.
The Codification act defines essential services as “any service or occupation whose interruption would endanger the life, health or safety of the whole or part of the population and which the minister may declare BY NOTICE in an SI to be essential service” (codification act, 19(h))
If the VP used the codification act or any other act or SI then he erred as well in the sense that he is not the custodian of the act or health SI neither is he the minster in charge of health services. Such proclamations are made by relevant minsters, Hon. Parirenyatwa in this case, who are given powers by the relevant legislations.
ESSENTIAL SERVICES SI 137/2003
Labour (Declaration of Essential services) notice 2003 declares essential services as services provided by heath personnel such as nurses, doctors (2(e)). This means that although nurses are allowed by the constitution to strike, they are also NOT allowed by the same constitution (As read with the SI 137/2003).
SI 137/2003 was made specifically looking at the old constitution and its yet to be aligned with the new constitution.
Such a glaring constitutional contradiction infringes on the rights on the nurses to collectively bargain their salaries and conditions of work. If health personnel are not allowed any job action then the constitution must clearly spell this out instead of allowing job action on one hand and criminalizing it on another.
POLITICAL IMPLICATIONS:
Zanu-pf has always been against workers since the days of mdc formation founded by zctu. Teachers and nurses have been victimized since the turn of the century with no pay rise for years while government officials award themselves hefty salaries and benefits.
For the last 8 years civil servants have been earning same salary despite the rising inflation. Their bonuses have been paid after a 6 months waiting period. Government claims not to have money to pay workers yet they have enough money to gallivant the whole globe (from Mugabe to ED). They claim the coffers are empty yet they can’t account 15 billion lost under their watch.
WAY FORWARD:
The Presidential powers, codification act and SI137/2003 are pieces of legislation are yet to be aligned with the new constitution hence must be discarded with urgency to avoid future contradiction problems.
Section 65 of the constitution must be revisited immediately and amended accordingly.
VP Chiwenga or Mohadi have not mandate to use presidential powers or to interfere through militarized proclamations in the runnings of ministries when the minister and the permanent secretaries are there.
If a certain service is essential enough not to be allowed to strike then that service must not be allowed to form labour groupings as such groupings have limited on nonexistent powers in case the employer disregard its demands.
Nurses must not be threatened with being fired and their demands must be met with urgency unless Zimbabwe is now a military state where laws do not matter but commands and declarations by the executive.
COMING ELECTIONS
Vote wisely. Vote for a government that respect the constitution. Vote for a government that respect rights of workers. Vote for your future.
By M.J Mbele