The Sunday Mail
So our Parliament has now passed the Labour Amendment Bill (LAB) whose main objective appears to be to improve or increase the lot of the workers whose employment contracts were terminated on notice when the Zuva Judgment was handed down by the Supreme Court.
By Tichaona Nyahuma
It is not my objective in this instalment to weigh if the amendments in question are, in reality, an improvement on what the affected workers were or are entitled to as that really falls in the province of trade unionists and politicians.
What has prompted me to return to this topic is that the LAB has been crafted in such a way that it will have retrospective effect.
In other words, it is going to look back and take effect from July 17, 2015 when the judgment was handed down.
In law, there is a general presumption or understanding that legislation may not be passed in retrospect. This is a rule of law which is cherished and protected by our Constitution.
However, such an approach is only possible if the new enactment expressly says so and if it does not take away rights and obligations which were acquired or accrued under the old law being amended.
But in the present matter, is Parliament not offside? Are the proposed amendments lawful particularly in light of the provisions of Section 17(1)C of the Interpretation Act?
That section says “Where an enactment repeals another enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed.”
Put differently, Section 17(1)C simply means that whilst it is possible to legislate retroactively, you cannot do so if the new legislation will affect rights and obligations that were acquired or incurred according to the old law and before that new legislation came into effect.
Indeed, Chief Justice Godfrey Chidyausiku confirmed that position in the case of Nyahuma v Barclays Bank (SC99/ 03).
The learned Chief Justice stated with his usual clarity: “In my view a proper reading of the above section reveals that it is only those rights that had not accrued at the time of the amendment that are affected retrospectively.
“Thus, in CASU, it is common cause that the appellant commenced the proceedings against the respondent before the amendment. At that point in time, that is, at the commencement of the proceedings, the appellant acquired the potential right of appeal against any order to reinstate the respondent by any of the adjudicating authorities in the course of the litigation between the parties.
“That right was potential and only accrued upon the noting of such an appeal. It is the potential right that is affected retrospectively by the amendment and not the right that had then accrued.”
In my own judgment, the rights of the parties to be affected accrued before these amendment became law and cannot, therefore, be tampered with.
The employers who used what I call the Zuva Way from July 17, 2015 incurred certain obligations towards the affected employees. By the very same token, the concerned employees also acquired or accrued certain rights when the notices of termination were served upon them.
Consequently, therefore, it would be improper to seek to alter or take away any such obligations and rights that accrued to employers and employees before the coming into being of the amendments in question.
Remember, for law to be relevant, it must be certain.
In short, this is one case where the presumption against retrospective legislation should be upheld not only because it is unlawful but also because it is unconstitutional in that it infringes upon the rule of law which rule of law is protected under Section 3 of our Constitution.
I, therefore, stress that the amendments brought about by the LAB are unlawful. Parliament is not above the law and it cannot, therefore, legislate in conflict with what its own other laws say.
If anything, Parliament should be the first to live by and obey the law. It has to lead by example. Ours is merely to follow.
This then brings me to what I said two weeks ago in this column which is whether this issue is really a legal headache or an economic problem.
I insist that it is the latter. No matter how well or how many times we may change or amend our laws, the fact of the matter is that the economy is deaf and blind to all of that. The economy is not one to be embellished and sugar-coated. It is too stubborn for that.
The Zuva Way, though seemingly a very narrow, thorny and pot-holed road, seems to me to be our only way to salvation.
The Bible, in Matthew 7:13-14, says: “Enter through the narrow gate. For wide is the gate and broad is the road that leads to destruction, and many enter through it. For the gate is small and the way is narrow that leads to life, and there are few who find it.”
By this amendment, are we not opting for the wide, smooth road that leads to death and destruction? Are we not trying to just sugar-coat the truth in the hope that somehow, everything will be plain sailing again?
Have we, as a nation, not adopted the ostrich approach that buries its head in the sand when confronted with problems and pretend that everything is well and good?
I, therefore, emphasise that this issue has long since ceased to be for lawyers to argue over and for judges to decide. It has become a purely economic matter. I do not believe even for one crazy moment that the employers who have taken the Zuva Way are unkind capitalists who just want the employees to suffer.
I believe the opposite is in fact, the hard truth. The solution to this problem lies outside the courts or Parliament. But where do we start from? What are the options, if any?
Is a National All-Stakeholders Economic Conference which is backed by real follow-ups and implementation of the resolutions a possibility?
These are the realities of our times. Some will say I am a heartless and cruel advocate for the capitalists. But then, what are the options, do we really have another choice except the Zuva Way?
No wonder former US President Bill Clinton once remarked: “It’s the economy, stupid”.
You be the judge!
Feedback: [email protected]
