via Jobs: Attorney General endorses Parly move – NewZimbabwe 19 August 2015
ATTORNEY General, Prince Machaya has said the state was acting lawfully when seeking to enact a law that overrides last month’s Supreme Court.
The court’s ruling allowed employers leeway to dismiss their workers on three months’ notice.
Government is rushing to enact its Labour Amendment Act in a desperate attempt to contain a jobs carnage that has seen over 20,000 employees lose their jobs in three weeks.
But Parliament’s legal committee Tuesday warned of a potential banana skin lying for government.
Presenting an adverse report in the house, committee chair and Mazowe South MP Fortune Chasi, said any attempt to enact a law that seeks to reverse what was correctly interpreted by the Supreme Court, on July 17, would be an invasion on the autonomy of the courts.
“The Committee unanimously agreed that the clause violates Section 3 (2) (e) of the Constitution regarding of the separation of powers in that the judgement made by the Judiciary was correct at law and in seeking to nullify that by an insertion of the retrospective clause, Parliament will have violated the principle of separation of powers,” Chasi said.
“Additionally, since the employers acted from the correct position at law, and having vested rights in terms of the Act, applying the retrospective provisions in the clause would be punitive on the employer and violates Section 56 of the Constitution relating protection of the law.”
The legal committee’s position divided the house with Proportional Representation MP Priscilla Misihairabwi-Mushonga agreeing with Chasi’s committee.
She argued that if the bill was passed in its current form, parties would in future still need to turn to the same courts for arbitration should employers decide to challenge the law.
Employers are terminating workers’ contracts on the strength of the existing laws which government acknowledges.
“So, whether you accept the issue of the adverse report or not, it has become a legally contentious issue,” Misihairabwi-Mushonga said.
“If anything becomes contentious, it means that somebody is going to have to arbitrate and somebody will have to make a decision and we know that that decision will have to be made in the same courts.
“We have four people who sat during the time of the Supreme Court and they will probably add five more to make up the Constitutional Court and the chance is that the workers will not win this particular war.”
Debate on the merits of the law was only allowed to commence after the leader of the house and Vice President Emmerson Mnangagwa ordered the house to “override” the Supreme Court ruling.
Meanwhile, Machaya, government’s chief legal advisor, endorsed Parliament’s position saying the new law can supersede the Supreme Court position.
“Parliament has the power to enact laws that have retrospective effect and laws that can override the Common Law,” Machaya told NewZimbabwe.com.
Machaya said he was still to get a briefing on the matter as he had just returned from Botswana where he was attending a SADC summit.
“All I can say is the general position of the law; that Parliament has the power to enact retrospective legislation.
“You have got a specific problem in mind and that problem is the one I am still to be briefed on.
“In general, Parliament has got those powers. If that committee was saying parliament does not have those powers, then I beg to differ from what they were saying.”
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