By Tendai Kamhungira
A married military couple that was dismissed from the force after the wife fell pregnant before serving her first three years has dragged army commanders to the High Court challenging the sacking.
Nester Chidembo and Emmanuel Masendeke are suing Zimbabwe National Army commander Philip Valerio Sibanda, Zimbabwe Defence Forces commander Constantino Chiwenga and Defence minister Sydney Sekeramayi.
The two were discharged from the force in February 2013, after Chidembo fell pregnant in contravention of the army policy which forbids members to marry or fall pregnant during the first three years of service.
Chidembo told the court that her contract of employment had been extended to 2020 after pregnancy tests were conducted and that she had completed her two-year probation period.
She said prior to the extension of the contract, she had married Masendeke in compliance with Chapter 43 (3) (4) of the standing orders, which allowed members to marry after attaining 18 years of age and to go for maternity leave with pay after serving at least one year.
Chidembo said that when the amended law came into effect, she had already signed her contract, under conditions which allowed one to fall pregnant after completing one year in service.
“There is a presumption against retrospective application of the law. In terms of Section 7 of Statutory Instrument 1989, when one is still under a probationary period, one is supposed to be given one month’s notice before being discharged. Such notice was not given.
“I was not heard before a decision which has a bearing on my legitimate expectation, that is my career was made,” she said, urging the court to reverse the dismissal.
On the other hand, Masendeke said that he should not have been dismissed, because he had completed the initial three years of service.
“The law is actually discriminatory since an officer who is in the same position with me is not discharged from the service if he impregnates his wife.
“The first applicant (Chidembo) is my lawfully wedded wife and such marriage was actually recognised and we were actually allocated married people accommodation after filing the same at my work place,” he said.
However, the respondents said Chidembo and Masendeke have no basis to be heard before the High Court, as they should have first exhausted internal remedies.
“…matters on the suitability of Defence Forces members should be appealed or reviewed by the Defence Forces Services Commission established by Section 217 of the Constitution,” the respondents said, further urging the court to dismiss the application.
“Applicants overlook that the Zimbabwe Defence Forces has a mammoth task of protecting the gains of our liberation struggle and in so doing high levels of discipline must prevail.
“The Zimbabwe Defence Forces is a sui generic (unique) organisation which aspires to achieve its objectives gloriously, a pregnant army cannot withstand the exigencies of a military struggle if the enemy was to strike today.”
The matter will be heard on Thursday before the High Court. Daily News