Source: ZCTU blasts proposed constitutional amendments | The Financial Gazette March 9, 2017
THE Zimbabwe Congress of Trade Unions (ZCTU) has criticised the proposed Constitutional Amendment Bill (No. 1) of 2017 saying that its enactment into law would stifle labour rights.
Government wants to effect amendments to the Labour Act due to the fact that sections 171(1) (b) and 174 of the Constitution imply that the Labour Court and Administrative Court are courts subordinate to the High Court despite their members also being called “judges”.
It was therefore noted that the sections appear to be at odds with paragraph 18(6) of the Sixth Schedule, which provides that: “Every person who, immediately before the effective date, presided over the Labour Court or the Administrative Court becomes a judge of the Labour Court or the Administrative Court, as the case may be, on the same conditions of service as apply on that date to judges of the High Court”.
Without affecting the equality of basic conditions of service between judges of the High Court on the one hand and, on the other, judges of the Labour and Administrative Courts, the Bill proposes to make explicit the subordination of these last-mentioned courts to the High Court by an appropriate amendment to section 174.
The Bill seeks to amend sections 172 (a) and 173 (a), which would see the Judge President of the Labour Court and Administrative Court respectively being called Senior Judges.
It further seeks to insert subsection 2 in section 174 to read (2): “For the purpose of this section and section 171(1) (b), it is declared, for the avoidance of doubt, that the Labour Court and Administrative Court are courts subordinate to the High Court.”
In conformity with section 188(4) of the Constitution, the salaries, allowances and other benefits of judges of the Labour Court and Administrative Court holding or acting in office as such on the date of commencement of this Act shall not be reduced.
In light of these developments, the ZCTU legal adviser, Zakeyo Mtimtema, said the labour fraternity does not support the idea of old fashioned titles of judges of the Labour Court and Administrative Court to be called Senior Judges.
He said these titles belittle judges working in those courts despite having the same qualifications with those in the High Court.
“There is need for respect for judges in specialised courts; the ZCTU is against the subordination of the Labour Court to the High Court because the Labour Court is a specialised court tasked to dispense social justice. Its decisions should not be overturned by the High Court, which is a general court. Instead, a specialised Supreme Court must be created to hear labour matters,” said Mtimtema, further noting that the essence of creating specialised courts was meant to develop labour jurisprudence and certainty derived from international labour jurisprudence.
Zimbabwe embraced the Labour Court as a specialised court to ensure that dispute resolution is made faster and simple with unsophisticated parties to the dispute being afforded the right to represent themselves and their members.
Under the proposed set up, trade unions and employer organisations would find it difficult to represent their members in the High Court because they are not recognised unlike in the Labour Court, which would then prolong the dispute resolution process to the disadvantage of workers since they lack resources to engage in endless court technicalities associated with the High Court processes.
Mtimtema argued that Zimbabwe is worsening its ease of doing business position because no reasonable investor would invest in a country in which disputes take long to resolve.
“Currently the Tripartite Negotiating forum (TNF) has finalised principles among which is the principle to strengthen the powers of the Labour Court to enforce its decisions unlike the current process that recognise enforcement of a Labour Court decision through the Magistrate’s Court and High Court.
“This has created unnecessary backlogs in the Magistrate’s Court and High Court,” he said.
Clause Six of the proposed Bill, which seeks to repeal section 180 of the Constitution and replace it by a section seeking to give the President freedom to hand-pick the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, has also been condemned by the ZCTU.
The union is opposing the Bill because it proposes to change the open process in the appointment of the above judges by giving the President the prerogative to appoint judges after consultation with the Judiciary Services Commission (JSC).
“The President has a legal room to go it alone and ignore the JSC recommendations, if he does not agree with it. The Bill requires him to inform the Senate (180 (3), which does not have the power to overturn the President’s choice according to clause 6 (3) of the Bill. The proviso states: ‘…Provided that, for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final.’
“It is the ZCTU’s view and submission that the notion of separation of powers and transparency envisaged in the founding values and principles in section 3 (2) (e) and (g) of the Constitution is under serious attack from the Executive arm of government.
“The President as an Executive arm will now be controlling the judiciary by making personal political appointments.
“The proposed amendment will be undemocratic and save to cloth the President with the former colonial master’s powers that excluded citizen participation,” argued Mtimtema.