NESTER Chidembo and Emmanuel Masendeke — a married military couple dismissed after the wife conceived a child before serving their first three years in the force — have dragged Zimbabwe National Army Commander Philip Valerio Sibanda, Zimbabwe Defence Forces Commander Constantino Chiwenga and Defence minister Sydney Sekeramayi to the High Court seeking reinstatement.
BY CHARLES LAITON
According to the court papers, the couple was discharged in 2013 after Chidembo fell pregnant in contravention of the force’s policy which prohibits serving members to marry or fall pregnant before the expiry of a three-year probation.
In her founding affidavit, Chidembo argues her contract of employment had already been extended to 2020 following the completion of her two-year probation period, which was at the time a requirement, before the introduction of the extended three-year period.
Chidembo said prior to the extension of her contract, she had married Masendeke in compliance with Chapter 43 (3) (4) of the army’s 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 a year on probation.
She further said when the amended law came into effect, she had already signed her contract under old conditions which allowed her to fall pregnant after completing a year in service.
“I was discharged from service with effect from February 28, 2013 in terms of Statutory Instrument 172 of 1989 Defence Regular Force.
This provision applies to members who cease to serve on completion of this engagement. As for me, I was still a serving member since I was formally informed, amongst others, by the commander that my period of contract had been extended to 29 February 2020,” Chidembo said.
“By extending my term of service after the expiry of the two years’ probation period, there was waiver of this provision on the part of the respondent impliedly. There was thus no breach of the contract on my part either. Be that as it may, when the amended law came into effect, I had already signed my contract which gave the allowance for one to fall pregnant after completing one year in service.”
Chidembo also said she was not given a chance to be heard before a decision which had a bearing on her career was made.
Masendeke also echoed the same sentiments, arguing he should not have been dismissed because he had completed the initial three years of his service in the force.
“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,” Masendeke said.
“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 workplace.”
However, in a combined response, the top army brass said Chidembo and Masendeke had no basis to be heard by the High Court as they had failed to exhaust internal remedies of the force.
“…matters on the suitability of Defence Forces members should be appealed or reviewed by the Defence Forces Service Commission established by Section 217 of the Constitution,” they said 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 generis (unique) organisation which aspires to achieve its objectives gloriously, a pregnant army officer cannot withstand the exigencies of a military struggle if the enemy was to strike today.”
The matter will be heard tomorrow before the High Court.