I HAVE decided to give this column a personal touch and name partly because coming up with a new title each week was becoming a headache but also to allow me to discuss a broad spectrum of issues that come to attention in a specific week.
By PAUL KASEKE
The column will simply be titled ‘Just saying’ because at the end of the day, whatever I state or discuss is just my opinion and I am, after all, just saying — with no hidden agendas or motives.
One of the more interesting things to emerge from the past week are the comments by Labour and Social Welfare minister Petronella Kagonye, who essentially told Parliament in no uncertain terms that Registrar-General (RG) Tobaiwa Mudede is going nowhere anytime soon regardless of his age. A question was posed to the minister as to the age of the RG and why he had not been retired, but that was met with a response not to talk about personalities and instead focus on policies. Using the minister’s cue, let’s get a few things straight from a policy angle in analysing her response.
Apart from blatantly contradicting the Finance minister’s Budget Statement which stated that government would retire civil servants who have reached the age of 65, the minister incorrectly interpreted the African Union Protocol on Older Persons which Zimbabwe has not ratified nor signed (but apparently will soon do so). Using this, the minister argued that older persons such as the RG, would not be removed from service based on age because to do so would be “discriminatory”. She referred to Article 8 of the Protocol and took it to mean that discrimination of older people means when they reach retirement age they cannot be relieved of their duties.
Three problems arise from her refreshing interpretation of the Protocol:
She incorrectly referred to Article 8, but that Article deals with protection of older persons against harmful traditional practices and the need to protect older persons from such practices. Presumably she meant Article 6 which speaks of protection against discrimination in employment.
Her interpretation of this provision has the awkward effect of no one ever being forced into retirement based on old age since to do so would amount to “discrimination of the elderly” and
It is a direct contradiction of the Budget Statement which presumably is government’s intended economic plan of action.
Yet again, we seem to see a dangerous mix of flawed legal interpretation and reasoning as well as contradictory government statements. Both elements remind me of a certain former minister whose inconsistencies led to the former president issuing a statement of clarification.
Kagonye’s legal arguments were not only uninspiring, but largely inaccurate. For instance, she started by asserting the appointment of the RG is partially done in terms of s 201(a) of the Constitution. The problem is that section does not exist.
Section 201 itself merely states that “The President must appoint a minister to be responsible for the Civil Service”.
She also noted that s201(a) must be read with Statutory Instrument 1 of 2000 which deals with the Public Service, but she neglected to detail which exact provision she was referring to. So basically, she could not adequately or accurately tell Parliament of the provisions governing the appointment of the RG.
She further stated that Article 8 refers to the protection of the right to employment — no such mention of a right to employment for older persons exists in the Protocol. It instead speaks of “access to employment with regard to occupational requirements”. The minister created an entire right for employment of older persons which cannot be found in the Protocol. To confer a right of employment would in any event be bizarre for anyone both under domestic law or international law.
The Article she intended to use merely says governments must ensure appropriate work opportunities for older persons considering their medical, physical abilities, skills and experience. It can be hardly appropriate that Mudede, who is supposedly 73 this year, is in an appropriate position for his age. The Article further states that the State should take measures to eliminate workplace discrimination considering occupational requirements. In labour law, if one is not able to perform his or her tasks properly then discrimination on listed grounds is permitted due to operational requirements. As Minister of Labour, one would expect that Kagonye would have also read this with the rest of the Article before making it seem like older persons are immune from retirement on the basis of age-discrimination grounds.
If the minister wants to take the Protocol seriously and have it ratified, then she should be aware that in terms of the same Protocol, older persons have a duty to mentor and pass on knowledge and experience (Article 20), but it is debatable if this can happen with the same man in office for over 27 years. The State has a duty to adopt measures to develop training programmes that prepare older persons for the challenges faced in old age including retirement (Article 19), but if the RG is in a perpetual contract of employment, then government is depriving him of this and he won’t be prepared for challenges faced in retirement and old age.
Lastly, the minister made references to provisions in the Public Service Regulations that allow persons over the age of retirement to continue working albeit on contracts. While that is true, there is a cap to the number of annual renewals that can take place otherwise the point of retirement is circumvented. The provision allowing this to happen states that the renewal of such contracts must be in the public interest, but I am not convinced that giving our RG another contract is in the public interest. If anything, removing him from his office so he can continue writing his books, may well be in the public interest – just saying.
The reason I went to great lengths to bring these issues to the fore is that actions taken or purportedly taken by use of wrong provisions or non-existent ones are generally nullities and not enforceable, but the Mugabe administration was notorious for this including when hiring or firing Cabinet members. With the new administration one would hope that these are avoided as this speaks to issues around the rule of law. Where ignorance and subversion of legal provisions exists, nothing lawful and beneficial usually arises from that. We need to get things right from the get-go and this means ministers knowing the laws of their portfolio. It also means being consistent on government policy. Government needs to be careful about these contradictions so early in office — it was the hallmark of the Mugabe administration, but also its downfall.
Paul Kaseke is a legal adviser, commentator, analyst and sessional law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as Director and current Group Chair of AfriConsult firm. He writes in his personal capacity. You can give him feedback via email: firstname.lastname@example.org or follow him on twitter @paulkasekesnr