- 24 AUG
A Commentary on the Labour Amendment Bill of 2015
COURT CHALLENGE ON CONSTITUTIONAL BASIS
The Constitution of Zimbabwe is the supreme law of the land. Any law that is found to be inconsistent with it will to the extent of such inconsistent be declared null and void. Such appears to be the case with clause 17 of the amendment bill. The basis of this argument is pretty simple.
Section 3 of the Constitution of Zimbabwe prescribes the values and principles upon which the Republic of Zimbabwe is founded. Of relevance to the Labour Amendment Bill is the need for all institutions and organs of the state to ensure observance with the principle of Separation of Powers as enshrined in Section 3 (2) (e) of the Constitution.
In essence, the concept entails the exercise of three government functions by three separate organs without interference, control or domination by one or two. In a state founded on separation of powers like ours, the legislative function is exercised by the legislature, implementation of laws is carried out by the executive whilst the judicial is there to interpret and apply the law.
Basically, no one arm of the government should control or interfere with the exercises of function of another arm of the government. Each organ should confine itself to its own function whilst ensuring that the other organs do not abuse their powers. This also means that the same persons cannot and need not form part of more than one of the three arms of government.
A careful analysis of the foregoing principle in light of Clause 17 Amendment will show that the principle was to some extent interfered with. The new law now obliges employers to compensate employees whose contracts of employment were terminated on notice following the Supreme Court decision that had approved such terminations.
This certainly can be viewed as a direct interference by the legislative organ with the judicial organ’s function of interpreting the law. There is no doubt that it was within the powers of the legislature to enact the law in question. However, it is legal untenable to purport to apply the law concerned in retrospect and in a manner that seeks to circumvent the court’s judgment. This therefore creates room for employers to challenge the same law on the basis that it is unconstitutional.