Article 266 Of The Zambian Constitution
Heron Mathis
Muna Ndulo is an internationally recognized scholar in the fields of constitution making, governance and institution building, international criminal law, African legal systems, human rights, and international law and foreign direct investments. He has published 19 books, 29 book chapters and over 100 articles in academic journals. He is Honorary Professor of Law, Faculty of Law, University of Cape Town, Extraordinary Professor of Law, University of the Free State South Africa, Extraordinary Professor of Law, University of the Western Cape, South Africa, and was formerly Professor of Law and Dean of the School of Law at the University of Zambia. He has been an arbitrator under International Chamber of Commerce (ICC).
Professor Ndulo has served as a Legal Officer in the International Trade Law Branch of the United Nations Commission on International Trade Law (UNCITRAL), Political and Legal Adviser with the United Nations Mission Observer Mission in South Africa (UNOMSA) and to the Special Representative of the United Nations Secretary General to South Africa, Legal Adviser to the United Nations Assistance Mission to EAST Timor (UNAMET), Legal Expert to the United Nations Mission to Kosovo (UNAMIK), and Legal Expert to the United Nations Mission to Afghanistan (UNAMA).
He has acted as consultant to the African Development Bank (ADB), World Bank, Economic Commission for Africa (ECA), United Nations Development Program (UNDP), National Democratic Institute (NDI) United Sates Institute for Peace (USIP) and International Development Law Organization (IDLO). He has also acted as consultant to the Kenya 2010 Constitutional Process, Zimbabwe Constitutional Process, Somalia, and Sudan.
Professor Ndulo is founder of the Southern African Institute for Public Policy and Research (SAIPAR) and member of its Board of Directors. He is also a member of the Board of the African Association of International Law, the Advisory Committee of Human Rights Watch Africa, and he formerly served as Chairperson for Gender Links, a South African NGO.
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(a) before the commencement of this Constitution, shall be the law that was in force immediately before the date on which the pension benefit was granted or the law in force at a later date that is not less favourable to that employee; and
The Employees were employed under fixed-term contracts and when their contracts came to an end, their gratuity was not paid on the last day of work so they were maintained on the payroll by the Employer (Respondent). Later, the Employer removed the Employees from the payroll, indicating that the unpaid gratuity did not qualify as a pension benefit, in light of the earlier Constitutional Court case of Lubunda and Chulu vs. ACC of 2018 (Just to give some insight, in the Chulu v ACC case, the question which was determined was whether Article 189 as read with Article 266 covered terminal benefits of employees who resign from employment to join another employer or who resigns for some other reason. The Court held that if an employee separates from employment and finds himself/herself working somewhere else, then that employee was not covered under the Constitution and the terminal benefits would not fall within the definition of a pension benefit under the Constitution. The terminal benefits, in this case, were made up of accrued leave days, uniform, and settling-in allowances. The Court also held that not all terminal benefits are pension benefits and the terminal benefits which the Applicants were claiming were those that did not fall within the definition of a pension benefit under the Constitution).
To start with, the Court expressly indicated that the issues in the Chulu vs. ACC case were specific to the nature of allowances and reliefs that were sought in that case and the Court opted to determine this case without making reference or reviewing the arguments in the Chulu vs. ACC case.
The Court considered the definition of pension benefit in the Constitution and held that even if gratuity is included in the definition of a pension benefit, what was key was to determine whether the gratuity that the Employees received was gratuity which fell within the meaning of gratuity under the definition of pension benefit in the Constitution. The Court also considered the rationale of the provisions on pension benefits as indicated in the Report of the Technical Committee on Drafting the Constitution of Zambia, which was, to cushion employees from the hardships that would arise from delayed payment of their pensions after unemployment, retirement, or death of a wage earner, especially that most of these employees could not even find gainful employment after.
The Court also held that the provision was supposed to be read as a whole together with Article 187 (3), which gave insight on the type of pension benefits the drafters intended to cover. The Court indicated that the provisions of the Constitution on pension benefits must be read with the relevant pension law, as indicated in Article 187 (3). The Court then took judicial notice of various pension laws in Zambia such as the Public Service Pensions Act, NAPS Act, the Pension Scheme Regulation Act, etc.
In terms of the payments that were made to the employees while being maintained on the payroll before this decision, the Court decided not to make any pronouncements on it. The court indicated that it was not within its jurisdiction (they were not constitutional issues) to decide whether the Employees should pay back the salaries drawn or whether the same should be used to set off the outstanding gratuity payments.
(b) The Court taking judicial notice of various pension laws, including NAPSA creates an implication that if an employee is retiring/ being terminated within the framework of the NAPS Act and their NAPSA monthly pay-outs or lumpsum pay, as the case may be, are not paid on their last day of work, effectively, the employer must maintain the employee on the payroll until NAPSA pays. I say so because the Court itself took judicial notice of the NAPS Act as one of the laws under which a pension benefit can be granted and effectively, the implication is that if that pension benefit is not paid on the last day, then an employer should maintain an employee on the payroll. This becomes problematic because NAPSA is a national scheme and covers every employee as opposed to private or public pension schemes for example that cover only a portion or specific type of employees. In addition, this puts a burden on the employer because the NAPSA scheme is not within the control of the employer, so an employer would find themselves in a situation where they might be sued because they failed to maintain an employee on the payroll who did not receive NAPSA pay on the last day of work. This would lead to a situation where an employer's recourse would be to defend themselves in court and indicate that their obligations were discharged. However, this could be after spending money on court and legal fees just so that the employer clears themselves. On a bright note, this might work well for members of the NAPSA scheme as it would put NAPSA on its toes to ensure that pensions are paid out promptly.
(c) Employers that have private pension scheme arrangements with third parties would now be prompted to put in place indemnity arrangements. This would be for the third-party pension scheme managers to indemnify employers for failing to pay a member employee on the last day after due notice is given. The indemnity might be for the costs incurred as a result of maintaining an employee on the payroll due to failure by the private pension fund managers to pay that member employee on the last day of work.
(d) Lastly, the position on whether employees who have been maintained on the payroll by various employers should get back the salaries paid or set off the unpaid gratuity from the amounts paid was not addressed by the Court. Therefore, it may be difficult for an employer to request a refund until a position is provided by the Court. Perhaps the High Court may have jurisdiction to entertain that portion of the case. Therefore, we will have to see what the Court says in that respect if at all this is something the Employer, in this case, has pursued.
Please note that this article provides general information and should not be taken as legal advice or as a substitute for the advice of counsel. Kindly formally engage a lawyer to assist with how this case will impact your business or employment.
In December 2015, Parliament passed parts of theConstitution of Zambia (Amendment) Bill that did not require a constitutionalreferendum, which came into force on 5 January 2016, after President EdgarLungu signedthe new constitution into law.
The referendum to approve or reject the proposedchanges to the Bill of Rights and amendmentclause will be held on 11 August 2016, at the same time asthe presidential, parliamentary and local government elections. In addition tothe civil and political rights already provided for in the current Bill ofRights, the proposed Bill of Rights includes new rights such as the right ofaccess to information, freedom of the media, freedom of movement (whichincludes the right to a passport), gender equality, right to procedurally fairadministrative action and non-refoulement for asylum seekers and refugees. Theexception to the prohibition on discrimination in the previous constitutionrelating to adoption, marriage, divorce, burial, inheritance, customary law orother matters of personal law, has been discarded in favour of an exceptionrelating to affirmative action. The new Bill of Rights also provides for anumber of non-derogable rights and freedoms, as well as a general limitationand derogation clause.
Proposed changes to the constitutional amendmentclause will enhance the role of the people in approving amendments concerning arange of issues. Under proposed articles 301 and 303, amendments to thesupremacy clause of the constitution; the sovereignty and sovereign authorityof the Republic; presidential and parliamentary electoral systems; tenure ofoffice and vacancy in the office of President; election and swearing in of thevice president; appointments, roles and tenure of ministers and provincialministers; as well as the amendment clauses and the Bill of Rights will requirea referendum, and subsequent approval by the National Assembly. The proposed amendmentclause is silent on the number of parliamentary votes. Under article 78 of theConstitution, in the absence of specific rules, the National Assembly decidesby a majority of members present and voting. All other amendmentsthat do not require a referendum must be approved by at least two-thirds of themembers of parliament at the second and third readings.
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