Source: Special economic zones law unconstitutional: Lawyers | The Financial Gazette May 19, 2016
THE law being pushed by government to give effect to the establishment of Special Economic Zones (SEZs) in which labour rights will not apply is a flawed piece of legislation unlikely to survive a constitutional challenge, legal experts said this week.
Lawyers who spoke to the Financial Gazette pointed out that the whole effort could end up being an exercise in futility as the proposed SEZs Act — as being proposed in a Bill before Parliament — could be successfully challenged at the Constitutional Court (ConCourt).
In a hurry to create SEZs in order to attract foreign investment, government has crafted a law that would enable it to establish the Special Economic Zones Authority (SEZA), which would manage affairs in these Special Economic Zones.
The SEZs Bill sailed through the committee stage of Parliament last week despite protests from opposition legislators.
The Bill proposes to exempt investors licenced in the zones from the provisions of the Labour Act as well as the country’s much-dreaded Indigenisation and Economic Empowerment Act.
Legal experts say it is almost impossible to create a subsidiary law that takes away citizens’ fundamental rights enshrined in the country’s Constitution, such as labour rights.
Labour rights are listed in Section 65 of the Constitution of Zimbabwe as part of the Bill of Rights.
“Such laws are unlikely to pass the constitutional test,” constitutional law expert, Alex Magaisa, who is based at the University of Kent in the United Kingdom, said.
“The Constitution applies to the whole country without exception. It sets the minimum standards for labour and any laws or policies that deviate are likely to be struck down unless they can be shown to be reasonable, fair, necessary and justifiable in a democratic society. Laws that reduce labour rights are unlikely to survive the constitutional test,” Magaisa added.
Zimbabwe’s current Labour Act is already subject to a class-action in the ConCourt, mounted by employers after it was controversially amended last year to curb rights of employers to terminate job contracts on notice, which rights had been confirmed by a July 2015 Supreme Court ruling, a ruling that according to trade union statistics, led to over 25 000 workers losing their jobs.
Investigations by the Financial Gazette revealed that there is a veil of secrecy around the proposed SEZs Bill.
After it was introduced in Parliament in December last year by the Minister of Finance and Economic Development, Patrick Chinamasa, it went through its First Reading on April 5 this year, where despite it glaring flaws, was curiously given a non-adverse report by the Parliamentary Legal Committee (PLC).
Public hearings were supposed to be conducted to elicit stakeholders’ view before it was brought before Parliament for its Second Reading. However, in a typical case of putting the cart before the horse, Chinamasa returned to Parliament two days later (on April 7) to make the Second Reading of the Bill, even before legislators had a chance to consult stakeholders on the proposed law.
According to legal and legislative watchdog, Veritas, when Chinamasa read the Bill, conspicuous in his presentation was any mention of the obnoxious clause on the exclusion of the Labour and Indigenisation Acts from the proposed SEZs.
“A non-adverse Parliamentary Legal Committee [PLC] report on the Special Economic Zones Bill was announced in the National Assembly on 5th April. Hon Chinamasa, Minister of Finance and Economic Development, delivered his second reading speech on 7th April outlining key aspects of the Bill. He did not mention the clause laying down that the Labour Act and the Indigenisation and Economic Empowerment Act will not apply to licensed investors in special economic zones,” Veritas pointed out in its commentary.
The Bill is now waiting final debate in the House of Assembly, which debate was adjourned to allow for the public hearing on the Bill to take place.
The public hearing took place from April 11 to April 16.
In his written submission to Parliament on the Bill, Zimbabwe Congress of Trade Unions (ZCTU) secretary general, Japhet Moyo, highlighted how the proposed “colonial law” violates workers’ rights and undermines the Labour Act.
“The ZCTU is concerned that this is retrogressive in that employers and employees engaged in special economic zones will not be bound by the provisions of the Labour Act, which are so elaborate in so far as they seek to protect employees against exploitation and unfair conditions of labour,” Moyo said in the four page report to Parliament.
“Employees are the losers as they will be subjected to regulations unilaterally made by the Special Economic Zones Authority, which may consult with the minister responsible for labour administration and there is no consultation with employee representatives in making such regulations.”
ZCTU said the Bill was taking away the labour minister’s powers because the SEZ Act is to be administered by the Minister of Finance and the Minister of Public Service, Labour and Social Welfare’s input is only on the making of regulations if the Authority considers it necessary to consult.
“The Labour Act was enacted by the President after serious consultation with labour and employers. This attempt to make the Special Economic Zones Authority to be the legislation in special economic zones and bypass a law duly made by Parliament is tantamount to subverting the powers of Parliament and the will of the people of Zimbabwe who chose to have a unified Labour Act in place,” said Moyo.
“Investors in special economic zones must be bound by the Labour Act and any regulations to be made must be made through collective bargaining other than unitarism and or unilaterally as proposed. This is a primitive way of labour legislation and takes us back to the colonial legislation era where labour rules were just imposed,” said Moyo.
He said the ZCTU feared that many workers would be left without the protection afforded them by legislation through the Labour Act. The Bill also proposes the preservation of secrecy and a penalty for disclosing such information about the authority and investment.
“We wonder why a public institution must conduct its business in secrecy. This is likely to promote corruption as those with inside information are not allowed to report any malpractice by the authority and investors,” said Moyo.
For the first time in the history of the Eighth Parliament of Zimbabwe, the LPC, which is understood to have given the controversial Bill a non-adverse report, is made up exclusively of practising lawyers.
The committee is chaired by Jonathan Samkange (ZANU-PF) and also comprises of Jessie Majome (MDC-T), Innocent Gonese (MDC-T), Fortune Chasi (ZANU-PF) and Ziyambi Ziyambi (ZANU-PF).
Asked how the committee okayed the proposed Bill despite its glaring flaws, Samkange said as far as they were concerned, the Bill does not violate the Constitution in any way.
“We were satisfied that the Bill does not contravene the law,” Samkange said. “You can ask others what they think but our committee, which is made up of seven very senior lawyers (five legislators and two Parliamentary legal officers) found nothing wrong with the Bill, hence the non-adverse report,” the Mudzi legislator said.
However, Majome a member of the PLC was singing a totally different song. The Harare West legislator expressed surprise at the developments, saying if any such thing had happened, it had taken place behind her back.
“I’m horrified that its clause 56 actually proposes to exempt the SEZs from the Labour Act! That’s tantamount to abrogating the labour rights guaranteed by Section 65 of the Constitution which are broadly fair labour standards… because the Labour Act’s role should be to implement those rights,” said Majome, who claimed some of paperwork on the proceedings in Parliament had been missing from her pigeonhole.
“I’m also shocked that it either leaves workers there in a lurch or allows the Labour Minister to dictate employment conditions at her whim thereby undermining the constitutional founding value of the rule of law and good governance, including separation of powers. I can foresee the Constitutional and Labour Courts knocking down that provision down as ultra fires the Constitution despite the non-adverse report of the PLC.
“However, given the government’s deliberate failure to align the (Labour) law with the Constitution, the provision might not cause workers much loss because the Labour Act itself is not aligned to the Constitution. It, including its recent amendment, actually abridges rights guaranteed by the Constitution e.g. maternity labour rights. The Constitution affords more protection to workers than the Labour Act and as such workers would have the Constitution itself to fall back on. The SEZ’s efforts may be in vain,” she said.
Majome added that government’s treatment of fundamental human rights — labour rights in this case — only serves to betray its disdain for human rights and workers rights.
Efforts to talk to Chasi, another member of the PLC, on the issue were fruitless as the ZANU-PF Mazowe South legislator initially promised to respond to the questions from this newspaper later in the evening, but follow-up efforts later drew blanks.
Chasi is currently a semi-detached member of ZANU-PF after being recalled from the post of deputy minister of Justice, Legal and Parliamentary Affairs last year in the wake of a purge in the party of members linked to the former Vice President, Joice Mujuru.