THE recently gazetted presidential proclamation banning the indexing of salaries, wages and prices of goods is unconstitutional and a violation of
international conventions, labour experts have said.
The experts pointed out that Statutory Instrument 159 A of 2007 issued two weeks ago under the Presidential Powers (Temporary Measures) Act (Amendment of National Incomes and Pricing Commission Act and Education Act) Regulations, 2007, was an attempt by the executive to make up for its failure to implement sound policies to address the economic crisis bedevilling the nation.
They said an economy could not be run by decrees. This demonstrated the extent to which government dealt in bad faith with its social partners, they said.
A Harare-based lawyer, Tafadzwa Mapfumo-Muvingi, said the Presidential Powers (Temporary Measures) Act was peculiar as it gives the president exclusive and overriding powers to make subsidiary legislation which supersede Acts made by parliament.
“This is clearly contrary to the universally accepted principle of separation of powers among key pillars of the state — the executive, the legislature and the judiciary,” said Mapfumo-Muvingi.
“The president is part of the executive. There is an overlap of the Act as it gives the president more powers to make regulations for six months without any ratification by parliament and this defeats its whole existence,” said the lawyer.
“It is also peculiar that the Statutory Instrument is seeking to amend Acts of Parliament — the National Incomes and Pricing Commission Act and the Education Act. This is not proper because law principles dictate that subsidiary legislation cannot amend an Act because it is inferior. It’s an anomaly,” she said.
Mapfumo-Muvingi said any amendment of an Act of Parliament should go through Parliament which has the mandate to amend and make new laws as it is representative of the views of the public.
“There is also a contradiction in the enforcement of the regulations as the Finance minister approved a 20% mark-up on the prices of some goods well after the regulations were made. This was done without any corresponding adjustments to salaries and consideration of input costs when prices are escalating in the wake of shortages brought about by the price blitz launched in July,” said Mapfumo-Muvingi.
She said laws could not be made to be enforced in retrospect as was the case with the decree to revert to June 18 prices.
“Inflation has been on the increase and people have been adjusting their budgets accordingly. So how can you make a law to criminalise everyone? We can’t have an economy run through taskforces and commissions. What is the role of relevant ministries and their technical staff who are supposed to look into these issues?” she asked.
In a statement on its analysis of the constitutionality and legality of the regulations, the Zimbabwe Congress of Trade Unions (ZCTU) legal department said the temporary measures were illegal, unconstitutional and a violation of international labour conventions.
It said government ratified 26 major ILO conventions, 87 regarding Freedom of Association, 98 on the right to organise and collective bargaining, and 105 on abolition of forced or compulsory labour, among others. The ZCTU said Convention 87 was constitutionally protected under Section 21 of the Constitution.
“Section 21 states that no person shall be hindered in his or her freedom of assembly and … to freely assembly and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his interests,” the ZCTU said.
“Economic interests are not listed under Section 21 as these things that can be done under the authority of any law to justify such law as that which is under discussion (Presidential Act).
“Moreso, the measures taken cannot be said to be reasonably justifiable in a democratic society (section 3). Even in an undemocratic society, such measures would not be acceptable. The economic interests are unconstitutionally listed under the Presidential Powers (Temporary Measures) Act,” the ZCTU said.
The labour body said the measures taken cannot be said to be reasonable in addressing the economic demise, “especially when we take into account that the demoralised employees are only 10% of the workforce and these will shrink further because of demoralisation”.
It noted that the regulations were in violation of ILO Convention 87 and Section 4 of the Labour Act which the government ratified. The convention obliges government to encourage and promote the full utilisation of machinery for voluntary negotiation between employers and employees through collective agreements.