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Are you an Employee (Part 2)
Well, in part 1 we looked at the factors that indicate that one is indeed an employee and not a contractor. The ILO guidelines set clear guidelines and they are quite straightforward. As discussed in previous article Employers tend to want to avoid responsibilities associated with having employees such as training, following proper termination of employment procedures, taxes and other benefits employees are legally entitled to. Interestingly there is a quite a whole other dimension to as who fits into the bracket an employee. Persons performing an illegal act or illegal work like a gang of bank robbers or assassins for example may fit well into the ILO regulations in as for as being labelled an employee because of the principle “ex turpi causa non oritur actio” (no action arises out of a dishonourable cause) . However because of the illegal work they do they will not be legally recognized as employees. It should be that simple however that’s not the end of the inquiry. What of a person working and providing a lawful service but for some reason has a status that is undesirable and affects his/her legal standing in as far as work is concerned. We shall look at a few common cases and instances where the illegal status of a worker or where the work the worker performs is illegal. Does that person now then meet the criteria of being legally recognized as an employee?
1. Illegal Immigrants
The world has become such a global village and this village is slowly eroding borders between nations as migration has become a way too common feature in our lives. Millions of people migrate from their home countries to others in search of better economic opportunities. Sadly this reality has created an outer rim class of people that migrate, live and work in other countries without the proper documentation. What then is the status of such workers, such employees? Are they recognized as employees? The South African Constitution has been interpreted in case law in a manner that accomodates these workers/employees. Section 23 of The Constitution of South, 1996 provides that everyone has the right to fair labour practices. This was interpreted well in the case Discovery Health vs CCMA 2008 BLLR 633 (LC). In this particular case a foreign person worked for Discovery Health but did not have a valid work visa. He was subsiquently dismissed as a result of his illegal immigrant status. He filed an unfair dismissal case at the CCMA and the CCMA held the following;
Section 23 of the Constitution 1996 was wide enough to include illegal immigrants as the text was designed to include “everyone”. Therefore every one in the bracket of a worker or employee was included in the definitition.
The CCMA thus had jurisdiction to make a ruling on the matter regardless of the illegal status of the person/employee.
Another interesting ruling in the case was that it was the employer and not the employee that had contravened the Immigration act as it is the Employer’s responsibility to make sure he/she doesn’t hire prohibited people.
The Immigration Acts prohibition of illegal foreigners does not void the employment contract of such foreigner.
2. Sex Workers
A wise man once said, “ we need to legalize commercial sex work so we can better protect sex workers from the true criminals such as pimps, traffickers, rapist and violent abusers”. This wise man was truly wise…. But the point I want to drive home is, “are sex workers considered employees and can they be afforded protection under the law?”
The Kylie vs CCMA & Others 2012 SA 383 (LAC) case which is a “beautiful” expression of Labour Law and ILO principles. In the Appelate divsion of the Labour Court of South Africa the appellant in this case was a sex worker who alleged she was unfairly dismissed from her employment at a massage palour. At the CCMA and Labour Court it was held that these forums lacked juristiction and because the work in question here was illegal the contract of employment was thus void and unenforceable respectively. The Labour Court held that a sex worker was not entitled to protection against unfair dismissal in terms of the Labour Relations Act (LRA) as this would be contrary to common law principles incorporated in the Constituion that a court ought not to sanction or encourage illegal activities.
The Labour Court further held that although section 23 of the Constitution of South Africa provides that, “everyone has the right to fair labour practices,” it did not protect a person engaged in illegal employment.
The Labour Appeal court (LAC) then held that Constitutional rights including the right to fair labour practices vests in everyone, even if no formal contract of employment in concluded and even if the work is illegal. The (LAC) further held that the CCMA (Commision for Conciliation Mediation and Arbitration) had jurisdiction to determine such matter as the one at hand.
The LAC also held that a sex worker as the one in this case was to be considered as an employee for purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.
To make a long story short sex workers are entitled to rights unders The LRA and the Constitution. This is inline with ILO regulations on Employment.
3. Presumption of Employment
These two case are prime exams of how employees enjoy protection under the Constitution and the law. The LRA (section 200A) and BCEA (section 83A) have provisions that create a presumption of employment meaning there is a rebutabble presumption that a person providing a service to another is an employee. The absence of a contract of employment is not fatal in determining whether a person is an employee. As shown by the two cases illegal or unathorized work or wokers still can receive protection from the Constitution and other laws. Section 23 of The Constitution is quite a powerful provision in as as far as protecting employees. Its wording includes the word “everyone” which gives it a very wide scope or the next best thing.
Are you an Employee?
In the modern times, well through out the ages employment has been the part of the economic system that forms the very essence of human socio-political and economic life. The realm of employment has had quite the story since the dawn of mankind and you best believe the story ain’t over yet, no not by a long shot. The fate of the world has hung on the relationship between employer and employee for thousands of years. Every economic age that humanity has lived has been carried on the back of the employee. Sadly the appreciation employees have received has at times been less than that of a left toe nail. Employers have often taken advantage of this relationship. As a wise man once said, “employers ghost it when they make profit” (not my words)lol. More so from the first Industrial revolution up until the present modern era the relationship of employer and employee has become very dynamic and in many ways has also become quite a bit of a pickle to identify especially in legal terms. There is a fine line between an employee, a contractor/service provider or a slave. Yes slavery is alive my fellow humans beings. My Labour law lecturer always started a lecture by saying, “labour law, isn’t it wonderful”. Well without rambling on let me “launch a probe into this matter”.
Every country has its own labour law regime. The differences in the labour laws are mainly distinguished from conservative to liberal schools of though that mainly differ on the nature of employment contracts. The International Labour Organization (ILO) regardless of these differences in approach was established to protect the rights of workers and to create labour standards and legal uniformity for its member states. The ILO was established in 1917 as part of the Treaty of Versailles to help establish social justices principles especially the with regards to the rights of workers and currently has 187 member states. With regards to the matter at hand The ILO adopted the Employment Relations Recommendations, 2006 (No 197), a standard that provides member states with guidelines on how to establish the existence of the employment relationship. Though these are recommendations member states often adopt such recommendations either partly or in full or apply the principles when drafting related legislation.
Further to the ILO Regulations 197 the dominant impression test was applied by courts mainly in common law jurisdictions to determine whether a person/worker was indeed an employee. The South African case below and table show how the test was applied. The test is still applied by courts and and snuggled itself in Legislation concerning the same.
But first the following factors should be taken into account when applying the test:
- The work is carried out under the instructions and control of another party;
- The worker is integrated into the organization of the enterprise;
- The work is to be done mainly for the benefit of the other party;
- The work is carried out personally by the worker;
- The work is performed within specified working hours; or
- The work requires the provision of materials, machinery and tools by the party who requests the work to be done.
Smit v Worken’s Compensation Commissioner 1979 (1) SA 51 (A) case:
Dominant impression test.
There is no single factor that independently and conclusively determines the existence of a contract of employment.
Therefore all aspects should be considered and the court must look at the ‘dominant impression’.
CONTRACT OF EMPLOYMENT vs
*see table below*
National legislation within ILO member states largely subscribes to these ILO recommendations and common law in matters regarding the establishment of an employment relationship. In South Africa one of the first countries to recognize fair labour practices as a Constitutional right defining what an employee is became significantly important. The Code of Good practice 2006 (South Africa) which was adopted from the ILO Regulations was adopted and made the standard for interpreting legislation in as far as defining what being an employee entails. Save for the guidelines stated above the Code of Good practice acknowledges how some employers try to evade the title of employee and use quite cleverly worded contracts that classifies employees as contractors for example. Therefore a contract that classifies an employee as a contractor or otherwise will not be enforceable as such and the law will recognize the worker as an employee should he/she fall into the recognized guidelines. So lets take a look at these guidelines and examine how they have been adopted and are used in the labour relations dimension.
1. The work is carried out under the instructions and control of another party
A court may find that there is a contract of employment even if the employer exercises a relatively low degree of control over the employee. The factor of control or direction will be present if the person is required to obey the lawful and reasonable commands, orders or instructions of the employer or the employer's personnel, as to the manner in which they are to work.
Should the person only provide his labour to another who then provides the tools, work schedule, methods and instructions to said person then that person can be deemed to be an employee.
2. The person's hours of work are subject to the control or direction of another person
Should the contract specify the total number of hours of work or make provision for flexible working time, this could be compatible with a contract of employment. The absence of stipulated hours of work in a contract will not necessarily mean that it is not a contract of employment. Sufficient control or direction may be present if the employer is entitled to determine the number of hours that the person is required to work within a specified period - per day, per week or whatever.
3. In the case of a person who works for an organization, the person forms part of that organization:
This largely applies with regard to companies and other organizations. It would not apply for example to a person employing a domestic worker - although in such instances, the domestic worker is obviously an employee. A person who works for or supplies services to an employer as part of conducting his own business interests does not form part of the employer's organization. Therefore, a person who, for example, has a registered business entity and who renders services to another organization, does not form part of that other person's organization. A person who operates his own business bears risks such as bad workmanship, poor performance, price increases and so on. In the case of an employment relationship, the employer will typically bear these risks, and not the employee.
4. The person has worked for that other person for an average of at least 40 hrs per month over the last 3 months;
This provision of time indicates an ongoing relationship which establishes employment. The times vary from country to country but usually it is between 40 to 45 hours over 3 months.
5. The person is economically dependent on the other person for whom he or she works or renders services
If the one person is economically dependent on the other to the extent that his/her income and work activities depend on that one person or organization then that person is an employee.
Part-time employees are generally free to render services to other employers during their off- time, the capacity to do so does not affect the persons status as an employee though.
A contractor will alternatively be able to provide service to different clients and other entities, without having to report to or be under the control of another person in matters primarily to do with how he/she conducts the work.
6. The person is provided with the tools of trade or work equipment by the other person:
Should the one person be provided tools of trade by another then there is a high probability that an employment relationship exist. For example a telephone technician with a specialized company vehicle, tools and equipment who largely responds to repair damages on the telephone system. Such a person can be deemed to be an employee. A contractor on the other hand would bring his/her own tools of trade while working absent instruction from another.
7. The person only works for or renders services to one person/organization.
Well, this one might confuse the “connoisseurs”.lol. But just to clear the air of course seasonal and part time worker can still work for other employers and be recognized as employees still.
Note to employees: an employer wanting to evade responsibilities to his/her employees may craft a contract that strips employees their title as such. This would entail that the employer can dismiss, avoid certain benefits due to an employee or perhaps even dodge tax liabilities without consequence. It is thus important you know and understand your status as such to avoid being exploited in such a manner.
So, in essence these are the guidelines as per the ILO regulations which are largely drawn from common law, various other legislative provisions and principles. The matter surrounding the definition or what constitutes an employee is quite vast and also encompasses the status of “employees” conducting illegal work or who have the status of an illegal emigrant and so forth. Part 2 will explain further.
By, Denis R Maisiri
I QUIT! The Construct of a Constructive Dismissal
Employment is not merely a contract between an Employer and Employee, it is a relationship that can because of its complexity and dynamics be granted a sui-generis classification perhaps up there with marriage (but not exactly). In this relationship one may for a plethora reasons decide to make conditions intolerable for the other to the extent that the other opts out of the relationship and resigns. In the realm of labour law this is known as constructive dismissal. Section 12B (3)(a) of the Labour Act (Chapter 28-01) provides that An employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee. This entails that the employee resigned not necessarily on his/her own accord but because the Employer has made the conditions of employment so unbearable that the Employee “opted out”. Employers that seek to dismiss an Employee without following prescribed dismissal processes or that have no substantive reason to dismiss an employee for whatever reason they may have normally employ this method of dismissal. The Employer constructs an environment that is designed to frustrate and distress the employee to the point that the Employee resigns. This form of dismissal has common law roots but has been adopted in various countries’ legislation. I shall focus on the Zimbabwean position though it is safe to say the principles of constructive dismissal are largely similar and are applied in almost the same way in countries that have adopted this as a legally acceptable form of unfair dismissal.
For an Employer acting in bad faith there are advantages of having an Employee resign; it is cheap and the employee normally forfeits any benefits that are legally due to them if the employment contract is terminated lawfully. However dismissing an Employee without just cause and without following the prescribed process can be costly and in certain instances it can damage the image of the company. The aggrieved employee can take legal action against the employer if the employer is brazen about how he/she dismisses an employee without following proper procedure and without substantive reasons.
Though clearly defined and quite easy to understand from the text as proved in the Labour Act, constructive dismissal is notoriously difficult to prove for an Employee. This is primarily because there is usually no paper trail or evidence that shows the Employer was being hostile. Its not like the Employer is going to say; “hey I want you gone and I am making conditions intolerable for you so you can resign”. Furthermore at the time or instance the Employee resigns it is often an emotional decision that is done without thought or consideration of any legal ramifications.
To prove Constructive Dismissal there are 3 essential elements that need to be present;“whether the employee brought the contract to an end.
Whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable.Whether the employee had no reasonable alternative other than terminating the contract. The onus of proving these requirements rests on the employee.”
In proving all the elements of constructive dismissal the “first order of business” is to prove that the employee resigned. The resignation can be with or without notice. The resignation can be verbal or in writing as well.
The reason for the said resignation must be as a result of the employer making continued employment intolerable. As mentioned above, employers may have many reasons why they would want an employee to resign most of these reasons being sinister in nature. An employer may use force, coercion or use more subtle but equally “effective” means which can frustrate the employee to the point of resignation.
When a resignation is as a result of force, coercion, duress or undue influence it will amount to constructive dismissal. For example if an employee is forced to resign by being threatened with criminal charges if he/she doesn’t constitutes constructive dismissal. It is quite clear that in this particular instance the employer has made continued employment quite problematic to say the least. To the employee it seems the best option would be to resign as continued employment would mean the prospect of facing criminal charges more so when the charges are frivolous or unfounded. This would constitute constructive dismissal as the employer is given “a no win” situation where regardless of what the actual situation would naturally opt to avoid criminal prosecution not withstanding that after such a threat or situation is presented the employment relationship will become “toxic”. In Fonda v Mutare Club HH/40/91 an employee who had incurred shortfalls was forced to resign as an alternative to having the matter handed over to the police and be prosecuted. The court did not hesitate to conclude that the resignation was tainted with duress, thus constituting constructive dismissal.
There are scenarios whereby the employee may resign under what he/she may subjectively believe to be intolerable conditions caused by the employer. For example where the employee faces disciplinary action or any other process the employer can employer can take concerning the employee. In Mudakureva v Grain Marketing Board, an employee was brought before a disciplinary hearing and was found guilty of committing acts of misconduct but before the penalty of dismissal was imposed he was given an option to resign. He elected to resign and thereafter claimed that he was forced to resign. The court’s position was that an employee absent duress or undue influence could not resign and claim constructive dismissal.
As mentioned above, constructive dismissal can be notoriously difficult to prove. The Labour Act provides for various forums which an employee can approach in the case unfair labour practices by the employer or any other such abuses and at the onset an Employer is meant to have internal grievance procedures that allow an aggrieved employee to lodge a grievance which can be (if the stars are aligned) addressed objectively. These are the steps an employee must take before resigning. These steps of lodging grievances and prescribed legal forums ensures a paper trail that then proves that intolerable conditions where created by the employer and the employer did not or failed for correct his/her conduct. Furthermore an aggrieved employee has to exhaust all the above stated remedies before resigned and lodging a constructive dismissal case. A resent case in South Africa puts all this in proper perspective.
In Centre For Autism Research and Education CC vs CCMA and Others 2020 11 BLLR 1123 LC the labour court had to decide on the issue regarding lodging grievances before resigning in a constructive dismissal matter. The court regarding the same held that whereas lodging grievances was an essential element in a constructive dismissal case it was not necessarily futile if no such grievances were lodged especially in circumstance that didn’t allow for fair resolution of the grievance.
In conclusion constructive dismissal is quite easy to understand but quite a nightmare to prove. It is always essential to follow internal grievance processes in order to keep a paper trail of the intolerable conditions propagated by the Employer. Employers must follow proper procedures where they are no longer happy with an Employee or risk being responsible for unfair dismissal (constructive dismissal) where an employee resigns due to intolerable working conditions. Employees must also do their best to exhaust internal grievance procedure or at least make an attempt in that regard.
The Voting Matrix (Zim)
The Constitution grants us numerous rights, guidelines and protective measure that are designed to create a free, equal, cohesive and progressive society. The aforementioned rights and measures are designed to protect all people from abuse, unfair prejudices, discrimination and so forth. It seems however that when we talk about the Constitution we focus on our rights and what we can gain from it. No one seems to focus on the duties. It seems everyone wants to get but no one wants to give what is due. Yes, you read right, we have duties. They are many but one stands out and it will be the subject matter of this article. That duty my fellow Zimbabweans is *voting*. Chapter 7 of the Constitution provides for Electoral rights, duties and processes. Elections and voting are perhaps the most essential ingredients in a democracy. Voting allows us to choose who gets to form a government and lead us as a nation. It establishes the social contract between the government and citizens and gives it legitimacy. It is not only our right to vote it is our duty. Failure in this duty can be disastrous. It can lead us into a nightmare world where insidious forces can slip into government and cause a plethora of problems. Consider the scenario below.
Imagine living in a world where your fate and destiny are controlled by a small collective of people. A world where you are plugged into a system that gives you the illusion of free will and control. Imagine waking up in such a world and being convinced that there is not other way. This is what the Matrix in Zimbabwe looks like. It is a world where the majority has been made to believe we live in a democracy and we have control over lives and destinies. We have been plugged into a system that is designed to stifle our freedoms, destinies and ambitions collectively and individually. The Matrix we are trapped in has matured into an elaborate farce to the extent we have some that believe they are woke but are all part of a deliberate ruse by the system to give the illusion of freedom and control. Sadly the system has targeted the young people of Zimbabwe and plugged them into this system that keeps them dormant, passive and distracted. In this system we have seen the youths of Zimbabwe being distracted by religion, mbinga worship, falling sycophancy, joblessness and even a small window to exit the country and be done away with altogether. What then is this “Matrix”, what is this program? It is a parallel world designed by an oppressive system with the primary objectives of separating an entire nation of people from their power and Constitution. This is achieved by distracting citizens from taking part the political discourse of their country and most importantly by distracting them from “VOTING”.
Voting is so essential in a democracy and a key ingredient in as far as liberty and accountable governance is concerned. Without voting we can be plugged into this world where our freedoms are curtailed or cut out altogether. Without voting we surrender the power that gives us independence and freedom to determine our fates and destinies individually and as a nation. We allow a would be or actual dictatorship to cease power and or an untested and incompetent government that maybe be acting in good faith but is incapable. Both are equally dangerous and both are likely to negatively affect an entire nation. I would like to call this dynamic the “Apathy Matrix”, a world in which a country has been taken over by a dictatorship or the next worst thing. A world where the population does not have the confidence to challenge or participate because it did not vote to choose or reject the current government therefore there is no real relationship there. As we have seen in Zimbabwe the government has not time for opposition voters and are only happy to keep non voters quiet and out of the picture. Think of this as a “Blue pill” as Neo was offered in the 1999 franchise movie “The Matrix”. His choice was to pop the blue pill and remain blissfully ignorant of the fake life he was living, whereby he believes he lived a normal and free life but was in a matter of fact just a battery fueling a system that seeks to destroy all of mankind. This is similar to the life we live when we do not vote. We chose the blue pill and remain ignorant of our duty. This makes us vulnerable and we often end up just being “a battery” supporting a dictatorship or the next worst thing, all the while being blissfully ignorant.
The “Red pill” as Neo was offered represents being “woke”. Choosing to participate in the political discourse by first of all voting. Voting is the gateway to protecting our democracy, rights and safeguarding our social contract with the government of the day. It is by no means the easy the option but it is far a better option than being locked in the Apathy Matrix. Instead of being “battery power” for a dictatorship you can be “the One” that leads, participates and protects the democracy, rights and liberty we are meant to enjoy. When you vote you are in control of your reality, consciousness and can determine your fate and destiny. When you vote you can confidently hold the government to account, support this government when need be and you are woke enough to be the master of your reality and destiny within the grander scheme of things. This I call the “Voting Matrix”, a world where a citizen is woke enough to participate and carry out his duties especially the duty to vote.
In Zimbabwe the Voting Matrix is a really small world just like Zion in the Matrix movie franchise. Only a few people are in the real world and are in the fight of their lives but are free. Free to choose their fate, free to decide how they want to live, who to govern and free to decide their destiny. The voting patterns in the country are lamentably low. Yes there has been good years but the stats are quite dismal. Notwithstanding one or two past elections the stats are a nightmare. The current average turnout during elections is 45.67%. Less than half of the country generally participates in elections and votes. This is from a current total of a little over 5million voters with the average population of about 17 million. All this with about 60% of eligible voters actually being registered. If you do the maths you will find less than half of eligible voters taking part in voting. As mentions above this leaves the country vulnerable to dictatorship and other insidious forces that seek to deprive individuals and the entire population of their rights and freedom so they may carry out their agenda which is normally looting, abuse and domination of an entire population. In Zimbabwe the government has found voter apathy from the citizens quite advantageous. If the allegations of them manipulating elections are true low voter turnout and general voter apathy has allowed the ruling party to remain in power and worse still it has allowed them to be corrupt and dictatorial without much accountability to the citizens whom they govern. Mineral wealth looted out of the country, activists are arrested frequently, laws are manipulated and the Constitution is tempered with without much resistance from the people and this has a lot to do with voter apathy. By not voting we have allowed the current abuses to happen unabated.
In the coming 2023 elections the stakes are really high. The heart and soul of the nation are on the balance. Our liberty and destiny are in serious jeopardy. We have the choice of stepping up and doing the right thing. The choice of carrying out our duty to vote for the sake of our country. If we choose to be in the apathy matrix we would have further surrendered our rights, liberty and destiny as a nation to a few opportunists. There is much expected of us as citizens. We not only have rights but we have duties and one of if not the most important duty is to vote. This is how we save, serve and protect our country. And voting must not be a one time thing. It must be a continuous practice that is carried out without fail. Dictators are all around us my fellow citizens always seeking to get a foot hold in our country and all around the world. We need to vote to protect our democracy and peace. We need to do this while we still can! And one way to achieve this is to is vote. Not once, or twice but all the time. The only way to protect rights, liberty and destiny as a nation is by eternal vigilance…. choose the Red Pill and save your country!
The Constitution "A New Perspective".
“A dark day for Zimbabwe,” words echoed by Adv Mahere after ED signed into to law the Constitutional amendments that give him extensive powers that not only give him more powers but which eliminate his accountability to the people of Zimbabwe and gives him control of all the 3 arms of the state (a nightmare in the hands of a dictator). He is in all but name the King of Zimbabwe now. The amendments and consequences thereof are excellently explained by Dr Magaisa in his BSR weekly publications. Reading said articles will leave any person of liberal persuasion in shock and in fear. If you are a Zimbabwean, Read it! With that said not withstanding the brave lawyers that have lodged legal challenges to the amendments the reaction in Zimbabwe has been the usual rumblings on twitter, mostly passive and in many ways ignorant. This would seem odd considering the doom that these amendments mean for Zimbabweans and the worsening disaster that will quickly follow. Fear is a huge factor in this but it seems that Zimbabweans do not know exactly what it all means and do not understand the consequences of having a corrupted Constitution or having it destroyed all together.
Meanwhile ZanuPf has shifted into the fifth gear in its desire to alter the Constitution. Only power matters to ZanuPf and the Constitution is merely a piece of legislation that they can manipulate to gain more power. Actually Constitutional amendments are not alien to ZanuPf, they have amended the Constitution several times through out their 41 years in power. ED’s administration has amended the Constitution 27 times in just 3 years. Strikingly all these amendments have been a mostly designed to gain ZanuPf more power and they are quite relentless towards the same. This also begs the question does ZanuPf even know what Constitutionalism is and what it means to have a Constitutional democracy? Regarding the recent Constitutional amendments ZanuPf’s justification of the same has revealed an insatiable appetite for power and a staggering lack of knowledge in Constitutional philosophy, principles and of our very own actual Constitution which they have a responsibility to protect.
So, what we have here is a nightmare scenario, a scenario in which two things are inevitable. That is the death of the Constitution and the annihilation of freedom for the people of Zimbabwe. So what then is a Constitution. There is numerous writing on the subject but it really seems it is harder for the common citizen to understand. I want gogo and sekuru at the rural areas to understand. I want the younglings in primary and high school to understand. I want Tindo and Ruvarashe to understand. Above all I want everyone to feel the spirit of Constitution for the Constitution is not merely a piece of paper but it is the spirit of our country authored by our hearts and souls. The principles and procedures as set out in a Constitution aren’t merely legal provisions which are drafted to implement legal provisions that must be adhered with sanctions attached for non compliance. The Constitution is the very heart and soul of the Nation. It is a living document that represents the essence of our values as a nation. It sets out our aspirations as a nation, our basic human rights, how we resolve disputes, how we develop laws that govern our state, assigns authority to various state institutions, facilitates the separation of powers (that is between the presidency, parliament and the judiciary) and sets out the various procedures that allows us to effect and protect all matters arising from its provisions. The Constitution in essence embodies the principles of the state, the basic rights of all citizens, and the processes of government. Furthermore it is a social contract between the government of the day and the citizens of a country. This document cannot thus be altered unilaterally by the government or any other Act of parliament especially Acts, acts or legal provisions that are not in line with the principles set out in it.
As a young boy growing up in the 90s while visiting my uncle he introduced me to the Terminator movie franchise. In these movies the world is under threat from a super computer (Sky Net) that is given artificial intelligence for the purpose of operating as an independent defense operating system that can make decisions and pretty much run the entire country’s governance for the purpose of defense from external or internal threats. The control Sky Net is given is subject to human programming which is designed in such a way that values human life and safety. Its programming is benevolent and places human life as its primary objective together with national defense. This is kind of what a Constitution is supposed to be like: “an artificial intelligence operating system programmed to protect human rights, control government power and guide the development of the legal order”. More importantly Sky Net’s programming cannot be easily changed and it has programming that allows it to protect itself from more insidious forces or people that may want to use it for harmful purposes. It is this kind of set up that results in Constitutional jurisprudence referring to a Constitution as a living document, a document that sets out how a state is governed. It is the supreme law of a state and all citizens, state institutions, private and public organizations must adhere to it. It is a sovereign document that has its programming and operates in a manner that allows it to govern mostly independent from external influence. It has mechanisms that allows it to protect itself from external influence more so insidious external influence.
Regardless of it’s sovereign status it still requires humans actors to activate its features most importantly its defense features. It does this by placing duties on all citizens, government, state institutions and other actors. Most Constitutions place a duty on the government to serve and protect the Constitution and its values. Unlike sky net that is a computer program and has a huge arsenal of civil and military assets at its disposal the Constitution has to rely on human actors to do its biding through different kind of institutions and organizations (state/government/private). What then if the very humans meant to enforce and protect it decide otherwise? Well the Constitution as mentioned herein is a living document. Its life is brought about by the people who poured into it their most sacred values and principles, “sugar and spice and everything nice as mentioned above.” When there are insidious forces that then seek to abuse, unilaterally change or destroy the Constitution it inevitably results in weaker people, institution and organizations being affected by such action as their freedoms, rights and dignity are affected. The Constitution then gives these persons rights, duties and protection that allow them to step up and take actions against the “bad guys”.
In the Terminator franchise Sky Net is given control of every aspect of Government, society and the military. However its developers knowing how powerful it is and how it can be manipulated had a defense arsenal that is not plugged to any computer system that can be accessed by Sky Net and that only humans can use. This arsenal could be used to defend against a corrupted and or compromised Sky Net. Likewise of the Constitution. In the event that it is “hacked” by bad guys (A dictatorship for example) it has defense mechanisms which cannot be corrupted by “the bad guys”. Constitutions especially modern Constitutions are based on natural law principles. Natural laws simply put are laws that are intrinsic (inherent/In built) to human nature. These laws are mostly in the form of human rights. These laws and values are the core of the Constitution and because they are intrinsic they do not necessarily need a Constitution to exist for them to have legal legitimacy. Human beings will always fight against injustice and abuse. This is the last defense of a Constitution.
A corrupted Constitution ceases to be a Constitution in as far as it's illegal or bad provisions are concerned. It loses it’s natural human programming and essence. When Sky Net was corrupted and developed an agenda that did not serve humanity there was no obligation to subscribe to its will. Actually humans gathered to have it destroyed because it became a threat to humanity itself and no longer represented the purpose for which it was made. Likewise of the Constitution. If a Constitution is corrupted and now has provisions that are inconsistent with the principles of good governance, human rights, separation of power and other such principles it becomes a harmful gateway for the abuse and pillaging of the nation as we have seen in Zimbabwe. After the second world war natural law jurisprudence saw a return to international and domestic legal paradigm. This therefore in short would mean that unjust Constitutional provisions and laws are not actually legitimate laws and do not “necessarily” need to be obeyed. Of course this position is depended on citizens uniting and refusing to obey such laws. As already mentioned without the participation or resistance of citizens, illegal or bad laws and provisions can become part of our Constitution: legitimized by our compliance and enforcement.
We as Zimbabweans have to understand the Constitution is not just the supreme law of our nation but the Constitution is us. We are the Constitutions. Its values and principles are engraved in our hearts and minds and souls. It is the living embodiment or our rights, dignity and aspirations as a country. When it is attacked we are in grave danger. Like Sky Net which got corrupted in the Terminator franchise, it led to the near obliteration of the human race. Maybe that is an extreme and out there example but if our Constitution is corrupted our nation will be in grave danger. The violence, kidnappings and killings (including a Genocide) which we have seen in Zimbabwe over the years have been as a result of the Constitution being violated and in many ways it could have been a lot worse if a Constitution did not exist at all. In 1930s Germany the Constitution was completely destroyed and we saw a global tragedy unlike anything this world has ever seen. We must seek to protect our Constitution with everything we have. This can be done through voting, participating in the political discourse of the country, learning about the Constitution and teaching the same to our peers, family and fellow citizens.