ILO CENTENARY CONGRESS FROM 4 5 OCTOBER 2019

ILO CENTENARY CONGRESS FROM 4 - 5 OCTOBER 2019 TO BE HELD @ FUTURE AFRICAN CAMPUS - UNIVERSITY OF PRETORIA , REPUBLIC OF SOUTH AFRICA Title: A legal analysis of the impact of ILO's contribution to the meaningful realization of the freedom of association as a fundamental human right for workers in Zambia - A case of The Attorney General and Labour Commissioner v Fabian Zulu, Amedeus C. Kamukwamba, Sitenge Mundia Muntanga and Others (Judgement No. 26 of 1995) of the Supreme Court of Zambia. Callout Box Track: “Freedom of Association and Beyond: Appraising 100 years of ILO Engagement in Southern Africa” § Callout One § Callout Two. § Callout Three.

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STRUCTURE OF PRESENTATION • Introduction; • The historical development of ILO and freedom of association in Zambia; • The case of Attorney General and Labour Commissioner v Kamukwamba and others( Judgment No. 26 of 1995) of the Supreme Court of Zambia; • Discussion of findings and analysis; • Freedom of Association and its implication in Zambia in law and practice; • Progressive realization of Freedom of Association; • Public Order Act v Freedom of Association; • Conclusion and recommendations

INTRODUCTION • This paper seeks to give a legal analysis of the impact of ILO's contribution to the meaningful realisation of freedom of association as a fundamental human right for workers in Zambia. • The right to freedom of association is the right to associate with others for the purpose of protecting common interests.

INTRODUCTION • The paper draws inference from the seminal case of the Attorney General and Labour Commissioner v Fabian Zulu, Amedeus C. Kamukwamba, Sitenge Mundia Muntanga and Others (Judgement No. 26 of 1995) of the Supreme Court of Zambia (SCZ); • It is through this Case that FOA involving workers rights in Zambia was really put to legal scrutiny.

INTRODUCTION • In terms of Section 9 of the Industrial and Labour Relations Act, all unions are required to be registered by the Labour Commissioner. • He/she reserves the right to register, refuse to register or even deregister a trade union(ILR (Amendment) Act No. 8 of 2008).

INTRODUCTION • As we celebrate 100 years of International Labour Organisation’s (ILO) existence which was created in 1919 by the Treaty of Versailles, Zambia celebrated 50 years of its membership with the ILO in 2014; • The ILO’s Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87) has had positive impact on the Zambia labour market as seen in cases like The Attorney General v The Resident Association (2003) ZR 88; and the case study herein - Kamukwamba case as cited above.

INTRODUCTION ILO’s contribution to the Zambian labour market includes interalia: ØPromotion of social justice and social progress; ØPromotion of Human dignity in the place of work; Ø Advocating for non discriminatory policies & practices in order to promote fair labour practices in the place of work; ØProgressive realisation of FOA constituting part of the decent work agenda for the workers in Zambia.

BRIEF HISTORY OF ILO IN ZAMBIA • Establishment of the Republic of Zambia through Zambia Independence Act, 1964; • On 1 st December, 1964 Zambia becomes a member of the UN; • On 2 nd December, 1964 Zambia admitted as member of the ILO.

BRIEF HISTORY OF ILO IN ZAMBIA • The ILO Office in Zambia was established in 1968 following an agreement signed between the Government of the Republic of Zambia and the International Labour Office (ILO); • Originally, the Lusaka Office was responsible for eight countries in the Southern Africa region, namely: Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia and Zimbabwe

BRIEF HISTORY OF ILO IN ZAMBIA • Following the end of the apartheid regime in South Africa and the opening of an ILO office in Pretoria in 1995, the country Office in Lusaka is now responsible for three countries only ; Zambia, Malawi and Mozambique.

THE CASE OF ATTORNEY GENERAL AND LABOUR COMMISSIONER V KAMUKWAMBA AND OTHERS(1995) • The brief facts are that Respondents, as plaintiffs in court below, applied for registration of a union; • Labour Commissioner rejected the application on grounds that the Zambia National Union of Teachers(ZNUT) existed and represented all teachers in Zambia including secondary school teachers.

THE CASE OF ATTORNEY GENERAL AND LABOUR COMMISSIONER V KAMUKWAMBA AND OTHERS(1995) • Respondents applied to the High Court for a declaration that their constitutional rights had been infringed; • The High Court Commissioner ruled in favour of the Respondents.

GROUNDS OF APPEAL The Attorney General appealed, advancing four grounds of appeal: • The 1 st ground was that the learned trial commissioner erred in law and fact by holding: Ø (a) that section 9(8)(c) of the ILR Act No. 27 of 1993 can only be justified if it is shown that it was promulgated for the sole purpose of regulating the registration procedures of political parties and trade unions; Ø (b) that section 9(8)(c) however goes beyond regulation of registration in that it outrightly bars employees in industries where there is already a union in existence from forming new trade unions;

GROUNDS OF APPEAL. . . CONTINUES Ø(c) that such powers are therefore outside the purview of Article 21(2)(d) of the Constitution of Zambia Act No. 1 of 1991; and Ø(d) that section 9(8)(c) is to that extent therefore in conflict with the Zambian Constitution and therefore invalid.

GROUNDS OF APPEAL. . . CONTINUES • The 2 nd ground is that the learned trial Commissioner erred in law in holding: Ø that the refusal by the second appellant to register the Respondents union on the grounds that the teaching profession was already represented by the ZNUT was a denial of the petitioners’ fundamental right and freedom of Assembly and association as enshrined in Article 11 (b) and 21 (1) of the Constitution of Zambia (Act No. 1 of 1991)

GROUNDS OF APPEAL. . . CONTINUES • The 3 rd ground: Øthat in coming to conclusions to which he did, the learned trial commissioner fell in grave error by failing to address his mind to the exception contained in Article 21 (2)(4) of the Constitution of Zambia (Act No. 1 of 1991).

GROUNDS OF APPEAL. . . CONTINUES • The 4 th ground of appeal: Ø that the learned trial Commissioner acted against law and weight of the evidence on record.

JUDGMENT OF THE SUPREME COURT OF APPEAL OF ZAMBIA • Court held that: Ø(i) Section 9(8)(c) of the ILR Act No. 27 of 1993 is not ultra vires the Constitution and allows for the registration of a separate union for secondary school teachers.

JUDGMENT OF THE SUPREME COURT OF APPEAL OF ZAMBIA • (ii) (CHAILA, J. S. dissenting) ØThat the proposed Secondary School Teachers Union of Zambia comprised a specific category, different from other teachers who are qualified to form a trade union within the terms of section 9(8)(c) of the ILR Act, and that its members are not adequately represented by any other union

DISCUSSION OF FINDINGS AND ANALYSIS • From the case in casu, it is clear that the courts in Zambia have started moving towards deductive reasoning premised on ILO’s international labour standards. • This reasoning by the courts was also confirmed in the case of The Attorney General v The Resident Doctors Association of Zambia (2003) ZR 88

DISCUSSION OF FINDINGS AND ANALYSIS • Equally in the case of Standard Chartered Bank Zambia Limited v. Peter Zulu and 118 others, the Supreme Court of Zambia had an opportunity to use international law as a guide for interpreting domestic law. • Court concluded that international law could be a source of law for interpreting the Constitution of the Republic of Zambia or any other legislation.

DISCUSSION OF FINDINGS AND ANALYSIS • In the case of Zambia Sugar Plc v Fellow Nanzaluka (Appeal No 82/2001 of (SCZ), the Supreme Court of Zambia held that international instruments on any law, albeit ratified and assented to by the State cannot be of any force but merely of persuasive value and that ratification in Zambia is not domestication of the international treaty or convention as the case in casu.

DISCUSSION OF FINDINGS AND ANALYSIS • Not withstanding the foregoing, it must be appreciated that on the basis of progressive realization, even before the 1996 ratification of C 087, Judges in Zambia have been guided by ILO’s ILS on Conventions and Recommendation; • This is despite that Zambia is a dualist state where ratification of ILS is not domestication.

DISCUSSION OF FINDINGS AND ANALYSIS A critical analysis of ILO influence in ILS setting on the Zambian labour market reveal that interventions and guidelines are progressively impacting positively through: Ø application of fair labour practices and policies in the Zambia labour market; Ø freedom of workers to join trade union of their choice and freedom not to join such union

DISCUSSION OF FINDINGS AND ANALYSIS Øguaranteed human dignity for workers; Øguaranteed social security and social protection for all; Øpromotion of equality & legal certainty in the application of labour laws; and

DISCUSSION OF FINDINGS AND ANALYSIS Øcompliance with international labour obligations and standards by public authority; Ø freedom of association not absolute right, but need to be regulated without infringing worker’s rights; Ø fragmentation of trade unions can be negative if the impact affects economic development but can be positive to enhance freedom of association

PROGRESSIVE REALISATION OF ILO FOA IN ZAMBIA • The ILO’s contribution to the development of jurisprudence is not restricted to ratification & domestication of ILS but case law as well; • Development of legislation resulting in the meaningful and progressive realisation of the effective recognition of FOA leading to ratification and domestication of the said C 087 in 1996.

PROGRESSIVE REALISATION OF ILO FOA IN ZAMBIA • S 5 of the Industrial and Labour Relations Act(ILRA) has recognised FOA and the protection of the right to organize for both workers and their organisations. • Equally S 37 of ILRA has recognised FOA and the protection of the right to organise for employers and their organisations too

PROGRESSIVE REALISATION OF ILO FOA IN ZAMBIA • The right to freedom of association is further recognized and entrenched under Articles 11 and 21 of the Constitution of Zambia Cap 1 of the Laws of Zambia.

PROGRESSIVE REALIZATION OF ILO FOA IN ZAMBIA • ILO's contribution to the systematic application of international labour law has resulted into meaningful realisation of the freedom of association as a fundamental human right for workers; • However, this should not be claimed to be exhaustive or to give a full picture of the trends of the adjudicatory system in Zambia but complementary.

PROGRESSIVE REALIZATION OF ILO FOA IN ZAMBIA • ILO’s ILS intended primarily to supplement and encourage judges, lawyers, legal educators, professors of law and policymakers to devote thought to the diversity of hypotheses and techniques through which international legal instruments can be used in national adjudications as source of authority and inspiration in resolving labour disputes.

CONCLUSSION • Freedom of association is not absolute right, therefore it can be regulated without infringing worker’s rights; • Fragmentation can be negative if the impact affects economic development but can be positive to enhance freedom of association.

CONCLUSION • While Article 2 of the ILC 87 states that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation, the same FOA can be a double edged sword for the trade union organisation and workers in not handled carefully.

CONCLUSION Ø In the case of Sumaili Mbewe (Suing in his President of the Consolidated Miners and Allied Workers Union of Zambia-CMAWUZ) v Lumwana Mine Limited (Comp. No. IRC/SL/03/2018), Mulenga J of the Labour Division of the High Court for Zambia had this to say: Ø I must emphasise that the issue of employees’ freedoms and rights should not be belittled or trivialized by employers.

CONCLUSION • The Judge went on to say that employees rights and freedoms like any human rights are not only fundamental and constitutionally protected but have further been restated in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia.

CONCLUSSION We end our presentation by quoting what Victor Feather, a former British trade unionist, said in 1963: • “Where trade unions have been established, and that is about almost everywhere, they have come to stay. • Where they are not yet in existence, they will be. Where trade unions have been set up, but are not yet succeeding, they will succeed.

CONCLUSSION • Trade unions grow in hot climates and cold climates, in the east and the west, in the wet and in the dry; • They can talk in any language and in any kind of development; • Literacy is an advantage, but is not essential.

KEY RECOMMENDATION • Moving forward, Zambian Government need to be persuaded to amend the IRLA to reduce, regulate or even remove the excessively discretionary powers vested in the Labour Commissioner to register, refuse to register and deregister a trade union; • This is founded on the principle that FOA is too important a right to be left at the whims and caprices of one person.

KEY RECOMMENDATION Need to find the right balance between two important principles: Ø FOA and pluralism on the one hand, Ø Need to speak with one voice as workers and trade unions; eliminating division and fragmentation on the other;

KEY RECOMMENDATION Ø The need to defend the principle of trade union pluralism as an instrument for safeguarding trade union independence and the workers’ free choice to organize; Ø Freedom of Association: Is it a Double-Edged Sword that can unite or fragment trade unions?

KEY RECOMMENDATION Ø Generating a genuine political will among trade union leaders to accept and adopt the best solution in the common interest; Ø It is, therefore, not the principle but rather the incorrect interpretation and abusive practice of trade union pluralism that can be a double-edged sword.

WE THANK YOU FOR YOUR ATTENTION CLEMENT & JUSTIN