By Welshman Ncube
By the time you read this piece, the Parliament of Zimbabwe would have passed the Labour (Amendment) Bill, 2015.
It seeks to solve a labour problem for which many blame either the Supreme Court or overzealous employers said to have unscrupulously taken advantage of the Supreme Court ruling on notice termination of employment to engage in mass dismissals of employees without compensation.
I have read gloatingly provocative postings online by Zanu PF mandarins calling upon the opposition to take a position on the Bill whether they stand on the side of workers (with Zanu PF) or that of employers.
The reality though is that the mess we find ourselves in rests on the shoulders of Zanu PF. All blame lies in one place – at the doorstep of Zanu PF and its clueless government.
Zanu PF seeks to present itself as the saviour of the working people by the Bill yet it is the sole author of the misfortunes and misery inflicted upon the hard working people of Zimbabwe.
The economic mismanagement and disastrous policies ranging from a land reform programme implemented indiscriminately, vindictively and without any regard to basic economics, let alone the national interest through to indigenisation policies and laws also implemented without any regard whatsoever to basic common sense and all the way through to bad economic policies which have cumulatively brought the national economy to its knees, creating this labour crisis.
What is amazing is the number of so many opposition politicians who have joined the Zanu PF chorus belting out war cries against employers and the Supreme Court and supposedly for workers as if in drunken idiotic stupor.
To join Zanu PF in its hysterical frenzy on the Bill supposedly in the name of the people is the height of folly. The Labour crisis is a Zanu PF creation. They engineered the economic collapse. They mismanaged the country and economy.
Zanu PF destroyed just about every sector of the economy, and its enablers be it power, transport, general infrastructure, etc. They are responsible for the sorry state of business in the country. No law can ever decree successful business.
No law on retrenchments and compensation thereto will mend the economy. No labour law will serve a single business from collapse. Only a responsible, informed government with sound polices can do that. The Zanu PF government is not that government.
President Robert Mugabe claims to have won Election 2013 with ‘a resounding victory’ – this because he promised voters prosperity through ‘two million jobs’.
The Confederation of Zimbabwe Industries observed that our industry’s capacity utilisation is around thirty-six percent “due to lack of capital inflows, the liquidity crunch, no change in economic policy and low domestic demand”.
This is two years since President Mugabe ‘won with a landslide’. We ask, where are the millions of jobs when three million informal traders are hounded by ‘police’ from our streets? When some twenty thousand employees have been retrenched since the Supreme Court judgment; how come the de-industrialisation of Bulawayo, Gweru, Masvingo, Kadoma and Mutare continue unabated.
I am not for once insinuating that our country has ever experienced a state of full employment – my point is that when Zanu PF took over the reins in 1980, every adult who wanted a job had one – in farms, mines, industry, commerce, local and central government.
However, as President Mugabe began to feel progressively insecure, he embarked on a treacherous course of destroying our economy, resulting in capital flight and decimation of agriculture.
Zanu PF created mass emigration and unemployment in the country. We know better because in year 2000, the MDC was a strong and vibrant political party with its roots deeply embedded in the working class.
President Mugabe was equally aware that more than a million of these were farm workers and their dependants, so he deliberately destroyed that sector. He was ‘happy’ to see another three million workers escape to the Diaspora, for this would reduce their chances of voting for the MDC.
In the typical Zanu PF expert capability of creating red herrings, they have the audacious guile to tell us that they cannot attend to the fixing of the national economy today because skulls of some First Chimurenga heroines and heroes are allegedly displayed somewhere in British museums.
In the middle of the worst economic crisis since 2008 and choosing a solemn day for honouring those who paid the ultimate sacrifice so that we could be free and prosperous, a whole state President takes the podium and, instead of telling the nation how his party and government proposes to reset the course and chart a new way forward to recapture the essence of the values, principles, purposes and objectives of the National Liberation struggle so as to bring prosperity to the people in whose name so many gave their lives, he chooses to tell us about skulls.
Some of his Ministers follow this up without any trace of shame; saying the government cannot address the economic crisis until the British have ‘repatriated’ the supposed skulls. Yet another Minister takes to the media to tell us of the assembling of a team to engage the British over these skulls.
If the return of these skulls is an important precondition for our progress then why have they done nothing about them in 35 years? And all this while the country burns and workers are dismissed in their thousands not because employers are evil but because we have a government which has totally mismanaged the country and in particular the national economy which by any account is in total shambles.
We are now being asked to declare whether we are on the side of workers or employers in relation to this Labour Amendment Bill. We have always been and we will always be on the side of the hardworking people of this country.
We refuse to be hoodwinked by the beating of false war drums and the whipping of emotions to a frenzy. Emotion has always been and will always be an enemy of reason and common sense. Common sense and reason tell us that after all the hysteria and war drums have gone silent nothing, I repeat absolutely nothing, would have changed.
The Labour Amendment Bill, whether applied retrospectively or not, would not change for the better an iota of the challenges that faces our national economy. Businesses will continue to close. Companies will continue to relocate from Bulawayo, Gweru, Masvingo, Kwekwe and Mutare to Harare as workers continue to lose their jobs and livelihoods, with and without any compensation for loss of employment.
Employees of state enterprises such as NRZ will continue to go for months without pay. Luckier workers will continue to be placed on short time. Every aspect of the life of ordinary people will continue to deteriorate as long as the cruel President and his cruel party are in power. They have no plan, cannot have a plan and will never have a plan that will restore the economy. Theirs is a power game for power’s sake for the purpose of self-aggrandisement at the expense of the people.
Let us return to basics. The purpose of government is to secure national interest by implementing sound economic policies and creating an economic and business environment through a legal regulatory framework that is fair and just.
In so doing, a sound government recognises that in any given country based on free enterprise, people with capital seek to invest for a fair and reasonable return. They require economic policies and laws that give them security of their investment and reasonable returns on that investment. On the other hand, labour seeks job security, fair remuneration and safety at the work place.
It is the purpose of government to construct policies and laws that promote an environment in which the two interests are balanced for mutual benefit of both employers and workers.
Ultimately, the only true security for jobs, fair remuneration and safety at the workplace is the success of business – whether that business is public/state business or private business. The coercive capacity of the law does not and cannot create business and labour success.
In these circumstances, I refuse to applaud Zanu PF for the Labour Amendment Bill. I refuse to be fooled into seeing Zanu PF as fighting on the side of workers when in fact it is the author of their misery and that of all the working people of this country. I refuse to celebrate the making of retrospective legislation under the guise of protecting the greater good.
As one who spent the greater part of his life researching and writing about constitutions and constitutionalism and as a legal historian, I know all too well that all roads to repression are littered with nice sounding clichés and slogans in the name of the people and supposedly for the greater good.
Today, supposed democrats and rule of law advocates stand up opportunistically claiming that Parliament can make retrospective laws taking away vested rights.
Once this precedent has been set and once supposed democrats have joined Zanu PF in asserting that vested rights can be taken away retrospectively by Parliament, tomorrow Zanu PF will come back marching and waving the precedent on retrospectivity to erase one-by-one every other right we have. What short memories we have!
Only yesterday we were insisting on sections 3(1) (b) and 3(2) (k) of the constitution being part of the founding values and principles of our constitution; the inviolable essential features of the constitution on which everything else is built.
What was the point of the “we the people” declaration that “Zimbabwe is founded on respect for the rule of law” if we did not understand that one of the basic tenets of the rule of law is the notion that no one is punishable in body or in goods except for a distinct breach of a pre-existing law?
Equally, what was the point in “we the people” declaring that the “principles of good governance which bind the state and all institutions and agencies of government at every level, include due respect for vested rights’ if we did not understand that this very principle prohibits the making of retrospective legislation taking away vested rights.
Was it all in vain? The irony of all this is that the supposed democrats with whom we were in the trenches fighting for these provisions are today’s populist who have joined Zanu PF in its rubbishing and negation of these clauses supposedly for the greater good. Some of them having lost the argument in the Supreme Court should really not be part of those beating war drums, literally against the constitution.
Let them not cry foul when Zanu PF, true to its DNA, returns to devour them using the teeth given to it by them in the beauty contest of unprincipled populism! Principled democrats would be pushing for a National Framework that will secure the economy, grow business and guarantee the right to work and fair remuneration through successful businesses and a stable economy.
There are also hard questions to be asked of employers. What on earth did they think they were doing literally engaging in frenzied mass retrenchments under the guise of notice termination? The irresponsible conduct in mass dismissals of thousands of workers was always going to attract the attention of the usual populists. It was truly a season of silliness.
I am sure the judges of the Supreme Court who penned that judgment are equally shocked by the abuse and misuse of their judgment. I doubt that the Supreme Court would have upheld the mass retrenchments disguised as notice terminations of employment.
If what was being done by the employers is the true meaning of the Supreme Court judgment, then the Supreme Court would have held that the retrenchment clauses of the Labour Act stand for nothing. That cannot be.
As a lawyer, employer and political leader, I inevitably experience grief in solidarity with the thousands of Zimbabweans who have lost their jobs following the indiscriminate use of the Supreme Court judgment.
I know too that there are millions others toiling day and night to keep their heads above the water. To imagine that these retrenchments are nothing new, for they have, for decades, been part of our lives; all because of one entity – Zanu PF.
Now the chickens have come home to roost. Let me hasten to say Don Nyamande, Kingstone Donga and Zuva Petroleum are not the villains in this labour crisis, but symptoms of a political and economic system that has decayed over the past two decades.
There are millions of other citizens who lost their jobs long before Justices Chidyausiku, Gwaunza, Garwe, Hlatshwayo, and Guvava made the historical notice termination judgment.
In a normal functional economy, people choose where to be employed, who to employ, when to hire and fire, mutual respect and social justice are balanced with viability and sustainability of business.
Employers cannot dismiss workers based purely on animosity, hatred and revenge – especially where demand for goods and services is high. But we are victims of bad governance and rapid de-industrialisation, arising out of bad economic policies.
Equally, hard questions should be directed at the trade union movement for sleeping on duty. Why were their research departments over all these years failing to pick out that the common law right of employers to terminate employment on notice had not been curtailed by the Labour Act?
Could they have been too busy playing midwife to the abortive ambitions or should I say stillbirths of their favoured politicians, who some more schooled than me in the English language have likened to clouds which never bear any rain?
Now the trade union movement has been caught with its pants down and has to run into the embrace of a grateful but lethal and venomous Zanu PF for emergency protection. One hopes good lessons have been learnt all round.
The issue is not whether or not people are retrenched with packages. The issue is about policies that create more jobs and opportunities for citizens to do things for themselves. The crisis is not in the law, but in the system of governance, a system that fails to attract both local and foreign investment.
Our opinion is that a devolved, revived and vibrant labour market through rapid industrialisation is an opportunity for a future MDC government to ensure workers and employees are empowered to associate freely, assemble freely and negotiate market rates for their wages and salaries.
We see local and provincial governments ensuring that labour best practices, workplace health and safety standards are adhered to while local human skills capacity will be given priority in order for labour to take advantage of local resource exploitation. The law comes in only to regulate and set minimum standards.
All investments will be encouraged to give priority to locals while workers will be encouraged to take up shares in local companies. Collective bargaining, strikes and negotiations will be managed effectively via tripartite social contracts.
All efforts will be taken to ensure workers are remunerated fairly in order to balance the interests of workers, employers and investors especially in managing prevailing cost of living. A new Social Security law will be put in place so that workers who retire maintain at least 30% access of their previous work benefits i.e. a liveable pension and access to basic medical care.