Supreme Court raps lax AG Ad­vised not to take se­ri­ous is­sues for granted

Chronicle (Zimbabwe) - - National News - Daniel Ne­mukuyu Harare Bureau

DEPUTY Chief Jus­tice Luke Mal­aba yes­ter­day rapped the At­tor­ney Gen­eral’s Of­fice for tak­ing a lack­adaisi­cal ap­proach when rep­re­sent­ing Govern­ment in court cases of na­tional im­por­tance.

The top judge said the es­teemed of­fice was fail­ing to treat mat­ters of pub­lic im­por­tance with the se­ri­ous­ness they de­serve.

The Deputy CJ’s cen­sure will res­onate with many who have raised con­cern with the At­tor­ney Gen­eral’s Of­fice in the wake of the botch­ing of sev­eral cases where the State lost not on mat­ters of law but wil­ful in­com­pe­tence of state coun­sels.

Jus­tice Mal­aba made the re­marks while sit­ting with eight other judges of the Con­sti­tu­tional Court in a mat­ter in which a Harare woman, Ms Emelda Mhuriro, was con­test­ing the con­sti­tu­tion­al­ity of Sec­tions 18 (1) and (3) of the Labour Act.

The pieces of leg­is­la­tion only al­low fe­male em­ploy­ees with at least one year ser­vice to go on fully-paid ma­ter­nity leave thrice with one em­ployer.

The laws give a limit of the ma­ter­nity leave pe­ri­ods for women and also deny newly em­ployed women the right to ma­ter­nity leave.

Ms Mhuriro is the gen­eral sec­re­tary of the Civil Ser­vice Em­ploy­ees’ As­so­ci­a­tion.

A chief law of­fi­cer in the AG’s of­fi­cer in­vited the court’s com­ments when she stood up and in­di­cated that her of­fice was not op­posed to the strik­ing down of the laws and that she had no sub­mis­sions to make.

“My in­struc­tions are not to op­pose this ap­pli­ca­tion and we will abide by the de­ci­sion of the court in this mat­ter,” the se­nior of­fi­cer said.

The AG’s of­fice never filed any re­sponses in the mat­ter and did not even file any heads of ar­gu­ment to as­sist the court in com­ing up with an ap­pro­pri­ate de­ci­sion in such a mat­ter of pub­lic in­ter­est.

Jus­tice Mal­aba quickly chipped in: “We are con­cerned that the of­fice of the AG takes a po­si­tion of not as­sist­ing the court at all in such a mat­ter of pub­lic im­por­tance.

“It is a Con­sti­tu­tional mat­ter that in­volves not only the ap­pli­cant, but the na­tion at large. In fact, it is a mat­ter of na­tional im­por­tance.

“There is a law that is be­ing chal­lenged and you can­not sim­ply take the case lightly and just say, ‘We are not op­posed’.”

The judge added: “The mat­ter has been taken very lightly. It has been taken for granted.” The chief law of­fi­cer could not stand the heat. She made a U-turn and sought a post­pone­ment to al­low her to take fur­ther in­struc­tions in light of the court’s con­cern.

“With the court’s in­dul­gence, may I take fur­ther in­struc­tions and pos­si­bly come up with some sub­mis­sions to make in court,” said the chief law of­fi­cer.

The Con­sti­tu­tional Court then post­poned the case in­def­i­nitely to al­low the AG’s of­fice to make sub­mis­sions on the ques­tion of whether or not Ms Mhuriro has le­gal stand­ing to chal­lenge the laws.

The AG’s of­fice is also ex­pected to sub­mit ar­gu­ments on whether or not the chal­lenged pro­vi­sions of the law are a rea­son­able lim­i­ta­tion on the right of the ap­pli­cant.

Ms Mhuriro filed her ap­pli­ca­tion in Jan­uary this year, but the AG’s of­fice ap­peared in court eight months later with­out fil­ing any re­sponse.

The woman’s lawyer Mr Caleb Mucheche of Mat­sikidze and Mucheche law firm at one point, sought the as­sis­tance of the court on how to pro­ceed with the mat­ter con­sid­er­ing that the AG’s of­fice had de­cided to ig­nore the ap­pli­ca­tion de­spite be­ing prop­erly served.

The reg­is­trar then re­sponded by ask­ing Ms Mhuriro’s lawyers to file heads of ar­gu­ment.

Ms Mhuriro con­tends that the laws were un­con­sti­tu­tional as they vi­o­late Sec­tion 65 (7) of the Con­sti­tu­tion, which grants un­re­stricted fully-paid ma­ter­nity leave as a right to all work­ing women.

She ar­gued that that Sec­tion 65 (7) of the Con­sti­tu­tion of Zim­babwe guar­an­teed un­lim­ited right to ma­ter­nity leave to all fe­male em­ploy­ees, but Sec­tion 18(1) and (3) of the Labour Act and Sec­tion 39(1), (3) and (4) of the Pub­lic Ser­vice Reg­u­la­tions, Statu­tory In­stru­ment 1 of 2000 set con­di­tions for the en­joy­ment of the right, thereby dis­crim­i­nat­ing against newly em­ployed women.

Re­tired Colonel Tshinga Dube

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