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Election Monitoring (The Law and The Politics)

At the core of an election is legitimacy. Absent legitimacy an election cannot be confirmed and allow for a legitimate outcome. A national election is of paramount importance and has profound individual and national consequences. Organizing an election is a prodigious task that has to be attended in a manner that secures credibility and legitimacy; it is the cornerstone of any democracy. In Zimbabwe the electoral process has been mired in controversy and this has greatly diminished the legitimacy of the entire electoral process. Regardless of comprehensive electoral processes, institutions, legislation and the Constitution 2013 of Zimbabwe, elections in Zimbabwe have fallen short of achieving a legitimate outcome; a situation that has all but led to a disaster to say the least. With the all important 2023 election drawing closer and closer it is crucial that the machinery that safeguards or promotes legitimacy of elections is built, strengthened and or activated. The electoral process is a multi-dimensional process that is as broad as it is complex. For purposes of this paper attention shall be primarily on elections monitoring and “protection of the vote.” We will further look into how private individuals can participate in the monitoring of elections as part of civil organization and or individuals.

The Constitution

Of course in order to understand and better interpret any provisions relating to any law, institution or national process we need to refer to the Constitution for guidance. With regard to election processes and election monitoring the Constitution is the go to provision. Chapter 7 of the Constitution makes provisions for Elections, related processes and principles. Section 155 of the Constitution 2013 sets out the principles of the electoral system in Zimbabwe and of importance to this paper is section 155(1)(d) which reads; Elections, which must be held regularly, and referendums, to which this Constitution applies must be free from violence and other electoral malpractices. This is a key provision that places a mandate on the state/government to ensure that all reasonable measures are in place that prevent election malpractices. Such measures include having independent election observers, transparent processes and a safe environment for voters and election officials alike.

Section 157 of the Constitution further provides the state must enact leglislation that give effect to the principles stated in subsection (1). In Zimbabwe the Electoral Act was enacted to give effect to the same among other electoral legislative provisions. The Act makes provisions for details relating to the electoral process which include voter registration, appointment of election officials, political parties and candidates, and election observers which are the primary subject of discussion herein. The Act sets out how different classes of election observers can be registered as such and what their role is within the confines of the law. This Act together with various other legal provisions are quite elaborate and clear on the principles, rules, and institutions that must be adhered to. However there are various provisions that certainly require reform as they do not serve the purpose of ensuring a free and fair election. Central to these reforms in as far as election observers are concerned is how the Accreditation Commission is constituted and its functions.

The electoral process is highly regulated and the primary reason is for its legitimacy. A free and fair election that is legitimate can only be achieved if there are checks and balances that satisfy all stakeholders, that is the citizens, civil society organization, the government, opposition parties and the international community. Central to this is the reports made by the observers who serve to confirm if the election was conducted in a lawful, free and fair manner. The Constitution deliberately sets out an extensive process and principles that ensure an outcome that satisfies all actors as stated above.

The Electoral Act [Chapter 2:13] (Act No. 25 of 2004) (The Act)

The Act enables the said electoral provisions as stated in the Constitution. It lays out the provisions that are to be followed and establishes the various institutions that are responsible for organizing Elections in the country. It is a very extensive document and is accompanied by various Regulations that serve to regulate the process in a satisfactory matter. Section 40 of the Act sets out the provisions relating to election observers. That is their registration, accreditation, activities and responsibilities. As per the Electoral (Accreditation of Observers) Regulations, 2013; a local organization wishing to apply for accreditation of its representatives as observers must be registered as a Private Voluntary Organization in terms of the Private Voluntary Organizations Act [Chapter 17:05] or established under a notarial deed of trust that is registered in the Deeds Office in terms of the Deeds Registries Act [Chapter 20:05]. This provision is primary designed to provide formality, certainty and accountability for any person who intends be an election observer. This is indeed a well founded provision that furthermore reduces potential anarchy especially in compiling observer reports and assessing the credibility of the observers which can be an administrative nightmare and worst case scenario this can lead manipulation and exploitation by actors acting in bad faith.

At section 40(1)(H) the Act provides for an Observers Accreditation Committee. This Committee constitutes of the Chairperson and other commissioners appointed by different Cabinet Ministers as provided for in the Act. This provision and manner which Commissioners are appointed however allows for political appointments who may be biased. In as far as accreditation of observers is concerned this compromises the legitimacy of the election as the observers can be accredited along party lines especially if the government is comprised of a cabinet belonging to a single party. This is a critical area that must receive attention and be reformed. Instead of appointment by cabinet members other independent Actors must take part in the appointment of the Accreditation Committee. This must include other state institutions and civil society individuals and organizations that are non aligned politically. With the very important work that election observers carryout having objective observers in of paramount importance. The significance of the mentioned need to reform is definitely an area that needs urgent attention before the 2023 election arrives; absent the same, credibility of the electoral system is already in jeopardy.

Registration and Process

Accreditation of Observers is provided for in Section 40(I) of the Act. Subsection (1) provides that An application for accreditation as an observer must be made no later than the fourth day before the first day of polling fixed in a proclamation made under section 38(1)(a), (b) or (c) for the election of the President, constituency members of the National Assembly or councilors. In the event of local observers (that is to say, individuals representing local organizations and eminent persons from within Zimbabwe), application must be made indirectly to the Chief Elections Officer through the appropriate provincial elections officer of the province in which the observers propose to discharge their functions while international observers shall apply directly to the Chief Elections officer.The application shall be made by any of the following persons, the individual or eminent person who wishes to be accredited; or the organization that wishes its representatives to be accredited; or the Minister responsible for foreign affairs, in respect of individuals whom the Minister has invited to observe an election; as the case may be. Once the individuals or organization has made the application the Committee must submit same to the Commission for consideration. The commission must respond to said applications within 48hrs and should it reject said application it must furnish the Committee with sound reasons as to why not.

Section 40(H)(2) sets out that the functions of the Observers Accreditation Committee shall be, subject to this Part, to recommend to the Commission the accreditation of different classes of observers from foreign observers to local observers as provided for therein. Subsection (2b) provides for local observers which are individuals representing local organizations and eminent persons from within Zimbabwe who have applied to be accepted as observers. Such observers must register with the Commission via the Accreditation committee. Citizens can therefore organize themselves and register as election observers that can participate in the election and lawfully observe and monitor the election as provided for in the Constitution and legislation. However as mentioned above the appointment of the Commissioners to the OAC gives the government of the day leeway to appoint biased commissioner. The lack of balance/objectivity in the appointments further compromises the functions and work of the observer mission. Should it turn out that the Commissioners are indeed biased this could further result in the work of the observers being compromised as well. Observers accredited by a partisan Committee and Commission are susceptible to influence and bias which is fatal to the legitimacy of an election. Observers under partisan influence cannot produce credible reports that are factual and unbiased.

Of particular importance is section 40J of the Act. Herein the provision states that only the prescribed number of observers shall be permitted to enter and remain at a poling stations and to be present at the counting or collating of votes at a polling station or constituency centre. The Electoral Regulations of 2018 at section 7 provides that Not more than six observers, or, if there are more than six observers wishing to observe inside a polling station or collation centre, not more than six observers representing different observer groups, may be present at once inside a polling station or a collation centre. Unaccredited persons are not allowed near the or in the polling station. It is therefore crucial to have an adequate number of people and organizations accredited in order have a lawful observer mission especially for the local missions. It is unlawful for a private citizen to be in or near to a polling station during counting as only accredited observers are allowed. Ordinary citizens seeking to participate as observers must contact the Commission or observer missions in order to get direction on how to lawfully participate.

The Politics of Election Monitoring


One cannot stress the importance of political parties having election observers that monitor the happenings at and around the polling stations. However political party observers tend to be or are viewed as partial and biased towards their parties. Their credibility of their reports can easily be dismissed as biased. It is therefore important to rope in more independent observers that are non aligned and independent of party influence and interests. Regardless it is crucial for political parties more so opposition parties to deploy adequate enough observers that serve to monitor the entire process more the conduct of Election Agents, voters, counting and announcing.

Training of Observers

Critical to achieving a legitimate result in an election is having observers that are well trained and able to diligently execute their duties. If the observers are able to give an accurate report of what transpired during the casting of votes and counting. This adds confidence to the process and reduces the prospects of having a disputed outcome as well trained observers can provide reports that can be trusted by all stakeholders. The funding of such an endeavour is of fundamental importance to the extent that there may be a need for the legislature to craft laws that set an amount that should be allocated to election observers in as far as their training is concerned.

Foreign Observer

Though this paper did not delve into the subject of foreign observers in great detail, it is essential that foreign observer missions are appointed and given a mandate by an objective Observers Accreditation Committee and the Zimbabwe Electoral Commission. Foreign observers moreso from nations and organization that do not have direct interests in Zimbabwe provide further cause to trust the outcome depending on the outcome of the result. The current Government in the 2018 election did allow for foreign observer missions which included the likes of the EU, US, UN, SADC and AU. However it seems their invitation was in bad faith where the observers are from nations that have the Zimbabwe under sanctions and their reports can easily disregarded as being biased against the Zanu Pf government.

Any foreign observer mission must be accredited by a properly constituted and non biased commission that objectively takes into consideration all relevant factors that allow for credible and non biased observers. Again the reforms regarding the Accreditation Commission are crucial here in as far as having observers that can give a balanced report that can be accepted by all interested actors.

Citizen Participation

When all is said and done and the dust settles elections are all about the citizens as the primary stakeholder in any election is the citizen. The primary goal is therefore to express the will of the people. The main objective being the people appointing a government that represents their interest and serves the entire nation. This however does not come naturally or organically. Governments tend to “fly off the hinges” and abandon the very important mandate of serving the people. In Zimbabwe were the Global Corruption Index ranks the country 157 - 180, where human rights are constantly violated and elections are often absent transparency, the government has shown itself to not represent the best interests of the people. Elections are therefore a particular flash point in as far as nation building is concerned. It is crucial thus that citizens participate in their civilian capacity in all aspects of the electoral process in order to make sure that a legitimate and accountable government governs the nation.

As shown above both the Constitution and the Electoral Act provide for citizen participation in the electoral process. Legally citizens can individually or collectively gather and lawfully take part in the process. This is the most important ingredient in the securing of legitimacy in an election. Having citizens report on their own election provides confidence, trust and legitimacy. Further, the more citizens we have involved in the process the more we can strengthen the accountability of all related state institutions, more so the electoral commission and the the Constitution as a whole. If citizens can step up to fulfil their Constitution duties a legitimate election can be a firm reality.

The stats are however not very encouraging. In the 2018 election it is reported that voter registration was under 60% while turnout was about 40%. Civil society participation though visible with the likes of ZESN was largely lacking especially in as far as observers are concerned. There is need for more participation by citizens to ensure that a legitimate election can be achieved. The youths, women and rural based folks are going to be central in this election. Only a hands on approach at all sectors of the electoral process will achieve a legitimate outcome that all stakeholders can accept without much reservations.


Observers are the guardians of Elections. They are essential in providing legitimacy to the election process. The process by which they apply and are accredited is therefore immensely important. The appointment of the Accreditation Committee is thus a cause for concern as highlighted above. It allows for the manipulation and bias of the Commissioner tasked with processing observer mission applications. Both foreign and local observer missions are of fundamental importance in an election. Their registration and accreditation is a process that is at the heart of ensuring a legitimate election that satisfied all Actors and citizens. A negative report compiled by observers indicating malpractices by any Actor can render the election illegitimate. The Constitution though very extensive regarding election together with supporting legislation and institutions, the ultimate guarantor of a free and fair election is the citizen who must register to vote, vote and participate in all spheres of the election especially in observer missions that allow for oversight and accountability.

By Danny M

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The Cyber Security And Data Protection Bill 2019

Commentary On Cyber Protection Bill

Purpose of the Bill

The Bill has a quite well written preamble and has all the hallmarks of well crafted legislation that seeks to serve and protect people’s rights while complying with the Constitution like all legislation is sup[posed] to. The bill firstly intends to consolidate cyber related offenses which should allow for, easy to understand and interpret legal provisions. Recently we have seen what seems to be very biased interpretations of cyber offenses related provisions with what happened to some pro-democracy activists and political opponents who tweeted some things that the government claimed were not true. The Bill on the face of it seems to want to address these issues by having one piece of legislation that deals with cyber offenses. But of course these laws/provisions have to be Constitutional, fair and not prejudicial to any and all rights due to the people. As we shall see, as progressive as the Bill is there are a few provisions that are a little dodge to say the least and lay open to abuse especially by a government seeking to silence opposing voices which of course is not cool.

Another purpose of this bill as articulated in the preamble is for data protection. We are most certainly in the digital age and save for an apocalyptic event like an alien invasion, zombie apocalypse and or nuclear war (did I leave anything out?); we are not going back to the stone age or atleast an age before the internet. This means we are going to “forever” (as long as civilization exists) be operating online and this largely entails the use of personal details and information on line. The Bill’s intention is to identify which data is personal, which should be protected and how to protect it. The Bill draws some of it’s principles and provisions for the European General Data Protection Regulation which now because of it being so well crafted serves as a template which many countries and jurisdictions and have been adopting. It has kind of set global the standard. In this regards the Bill is quite extensive and in tune with the need for the protection of person data and information online. As such it further aligns itself to international standards and laws which allows the country to participate online globally economically and socially.

Well, one thing is for sure, social media and the internet in general changed the “game” for humans out here. The internet especially the social media and business aspect of it has become an immensely important aspect of our everyday lives. We communicate publicly on platforms like Twitter, Facebook, Websites; we upload personal information and details on line for better or more access and we engage in trade and politics on these here platforms. For the most part it has been advantageous in ways we could have never imagined perhaps just 30 years ago. However the web’s insatiable hunger for data and personal information, its abuse by some in perpetrating violence of all kinds and its potential for political influence (in good and bad faith) has prompted the need for legal, legislative controls to keep things in check and protect users of the internet. In Zimbabwe there are various Acts and laws that serve to protect and regulate the use and abuse of the internet. These have been however scattered provisions that are subject to inconsistent interpretations and “misunderstandings” (if you know, you know). The Zimbabwean legislature though, at the instance of the cabinet has drafted and published the Cyber Protection Bill which is designed to consolidate online data protection laws and to regulate the use thereof. Lets explore this baby and see if it passes the Constitutionality test and if it serves as progressive legislation that serves its said purpose and protects against abuses by the government and other actors……. By the way, if you have someone’s nudes out in cyberspace, now is the time to pull them down, this Bill ain’t playing!

Furthermore the Bill seeks to establish a central authority for cyber security, data protection and to provide for the functions of said authority. The authority is further afforded with investigative functions and collection of evidence related to cyber crimes, unauthorized data collection and breaches, and to assist with the admissibility of electronic evidence for such offenses. Having a specialized authority for this highly technical field is necessary for it’s purpose and enforcement. The establishment of said institution/authority is a step in the right direction that will ensure proper regulation and coherence in dispensing the purpose of the Bill.

Its independence though from government especially, will be key in determining it’s effectiveness. If the Government meddles with the cyber authority especially in issues relating to processing evidence in criminal matters and retrieving personal information of opponents and activists (among other potential infringements) then there will be real problems. Governments have been known to approach social media companies and other online actors for the purposes of “unlawfully” retrieving data and information which actually disregards the privacy of individuals.

With our entire lives moving online from our education, businesses and our society, considering how “difficult” it is to regulate the internet (a prickly subject), having such a specialized institution is indeed essential in creating a safe and conducive environment for users. Further the central authority can help properly craft and articulate criminal offenses and other regulations on line which may be difficult to interpret for other responsible authorities with no knowledge or understanding of the cyber world. Lord knows we needs us some of that professionalism with matters relating to the world wide web (Cyber security and all).

Key Provisions

Section 5 – 6 (Establishment of Cyber Security Centre)

The establishment of the Cyber Security centre is right on the “money” as mentioned above. A well run Centre will ensure that the provisions the ‘Act’ can be properly enforced with expert help that understands the legal and technical dynamics of data protection and cyber security. The functions of the Centre are among others to advise Government and implement Government policy on cyber crime and cyber security, identify areas for intervention to prevent cyber crime; establish and operate a protection-assured whistle-blower system that will enable members of the public to confidentially report to the Committee cases of alleged cyber crime; oversee the enforcement of the Act to ensure that it is enforced reasonably and with due regard to fundamental human rights and freedoms; and others as provided for in Section 6 of the Bill. Leaving such matters to a technical institution is the best approach as it will establish uniformity, consistency and accurate interpretation of the legal provisions and their enforcement.

In addition a Data Protection Authority as provided for in section 7 – 8 will serve the purpose of regulation, research, and advice to the Minister on matters relating to data protection. The Authority will also serve as a report and complaints platform which will centralize said function which is necessary for proper and efficient enforcement among other advantages.

Section 31 Whistle-blowing

The Authority is granted in this Bill the power to regulate a whistleblowing system for the reporting of bad practices in as far as data protection and cyber security is concerned. “Whistleblowing” according to the Bill refers to legal provisions permitting individuals to report the behaviour of a member of their organization which, they consider contrary to a law or regulation or fundamental rules established by their organization. The online world can be really difficult to understand and can be used to harvest personal data for more nefarious agendas. With a proper whistleblowing system in place this can aid in reporting unlawful acts and wayward individuals. With the lessons learnt from the Facebook shenanigans a whistleblowing platform is necessary in regulating the industry.

Offenses Relating To Electronic Communications And Material

The Bill is quite thorough when it comes to cyber related offenses and on the face of it, it looks like its all set and good to go. However more discerning scrutiny of all the criminal provisions will reveal a landmine or two within a sea of nuggets. Anyone reading the criminal provisions must consider the relevant Constitutional provisions in the Bill of Rights notably the right to freedom of speech and expression.

Section 164

So here the Bill provides that anyone via a computer medium who incites violence against other people or property shall be guilty of an offence. This is well in line with justifiable provisions that seek to objectively address said problem. Inciting violence even or especially online is dangerous to any civilized society and must be stopped by all means. Violence as we have seen through out the brief history of the internet can be triggered online and have adverse effects including death and destruction of property. In this instance the provision is spot on and necessary. Of course violence in this case should be narrowly interpreted to only definite instances. Wide interpretation of cases where violence is incited may result in the freedom of expression being stunted especially by a government acting in bad faith.

Section 164C

Unlike the above stated provision this provision is a little tricky and subjection to all sorts of bias and interpretations. The provision is in relation to “false” information meant to cause harm, psychological or economic that is posted online. Now the interpretation of what constitutes false information has already been used in what seems to be biased use of the law to silence political opponents. We have seen chaps like Hopewell Chin’ono get arrested for posting what was said to be false information online. Clearly the government was up to no good and it actually seems as if that is the case that inspired this provision. What consequence could this have on journalists, civil rights activists and groups, whistleblowers and so forth? A quick glance at this question would point to a vast potential for abuses. Imagine a journalist who is investigating corruption in government and publishes some of his/her findings on social media or newspaper etc. All of a sudden the government officials in question hide the evidence, cry foul, and press charges in terms of section 164C. The corrupt officials would have considerable power not only to evade prosecution but to silence the journalist and have them sent to prison. This obviously will have other such people choosing to be silent and not tackling such matters as corruption or abuse of power etc. This therefore is in contrast to certain provisions in the Constitutions names section 61 (Freedom of Expression).

Section 164C, the way it is worded would not only affect the aforementioned class of people, it will also put ordinary internet users at risk of such prosecution and this could possibly spell the end of democratic freedoms and processes in Zimbabwe. Corruption and abuse of power will go unchecked as there will be no protection for journalists, activists and individuals that seek to expose it. Issues such as corruption and abuse of power in government are incredibly difficult to prove or even detect. Such a restrictive provision will make it impossible to deal with such. This is a bad provision and must be struck out before this Bill is made Law.

164B Cyber-bullying and harassment

Any person who unlawfully and intentionally by means of a computer or information system generates and sends any data message to another person, or posts on any material whatsoever on any electronic medium accessible by any person, with the intent to coerce, intimidate, harass, threaten, bully or cause substantial emotional distress, or to degrade, humiliate or demean the person of another or to encourage a person to harm himself or herself, shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment. This is for my fellow social media users. Be careful y’all. This provision is broadly written and extensive. With timelines, twitter spaces, live video broadcasts and the (infamous DM) people of nefarious motives lurk among us. This Bill is out here seeking to curb this global problem within Zimbabwe’s borders.

The problem with this is perhaps politician hiding behind this legislation as they hide from demands for accountability or responsibility. A captured Cyber Authority and legal system could see this provision being abused and used to shut down legitimate calls for accountability online. Politicians and other people of note should not be included in this Bills umbrella and in particular this here section 164B save for perhaps when their lives are threatened.

164 E Transmission of intimate images without consent

Ow boy, where do I start? The spike in the posting of nude images for the purposes of humiliating other people is quite scary. The proliferation of such is becoming unbecoming globally and Zimbabwe is no exception. The current law addressing the issue of posting nudes and so called “revenge porn” is primarily the Censorship and Entertainments Control Act, however large quarters of the society have found this law and others to be inadequate in dealing with the problem. The wider use of smart phones and other devices mean a lot more people have access to the web and the chances of someone in possession of intimate images posting same for whatever reason is on the rise. The Bill sets out a clear provision that sets out clearly defined parameters and consequence. This will make enforcing the law against posting of nudes without consent an offence that is enforceable absent complications. Those that already have nudes posted without the consent of those in the images might want to start pulling them down because they might just get a 5 year jail term according to the Bill. The trouble might come from pre-Act posts that have been posted and then re-posted by others and are still online while the originator has pulled down the primary nude post. It would be interesting to see how the courts will handle such instances. Further what happens to those that “retweet, like, re-post and other such things”.

The Business end Of Things

In today’s business environment everything has moved to the internet. This Bill bring Zimbabwe in line with best practices regarding cyber security and data protection thereby creating a conducive business environment for businesses operating in Zimbabwe. This will allow for lawful operation of businesses online where data is protected and use of cyber space is well regulated. With the world going digital this will be beneficial to Zimbabwean business that will be able not operate locally and internationally too.

Yay or Nay?

The Bill is largely progressive and does create a good framework for providing security and safety of sensitive information online. The creation of a central data authority and the regulations that have been set out in the Bill are well in line with international standards, for the most part. This Bill will drag Zimbabwe well into the global online community and allow for especially local companies to operate online while complying with global security standards. On the other hand it seems the drafters of this Bill slid in a provision or two that are unconstitutional more so section 164C which has the potential to spell the end of the freedom of speech and expression in Zimbabwe. That provision alone dampens if not obliterates the spirit and purpose of this Bill as it constrains a key and important Constitutional right that is essential for democracy and progressive societies.

Cyber Security


Danny Boy

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Throughout the ages the issue of equality has been at the core of shaping human societies and nations. Aristotle over 2000 years ago captured the dynamics of equality well when he said, “people who are equal should be treated equally, and people who are unequal should be treated unequally”. The world still battles with establishing what equality is and how best to implement it but it’s safe to say a lot of progress has been made around the world but there is still much to do. In the realm of employment equality is a jurisprudence that has been developing especially since Constitutions around the world started to recognize fair labour practices as a human right. The spectrum of equality in the realm of employment is quite wide and for the purposes of this article we are going to look at the most crucial aspects and cases so we may have a good enough understanding of it. I shall look at the South African development of equality in the work place as an example of established good practices, legislation and case law. We shall look at equality in primarily how people are discriminated against and how they are unjustly excluded from opportunities, rights, recognition and dignity.


At the heart of equality in the workplace is the place of women in the workplace. Historically women have been discriminated against due to their gender (Yeah I know right, its crazy!!🙆🏽‍♂️) . Appallingly the biology of women has been used to exclude women from the workplace. Women’s biology and childbearing “responsibility” has been used against them in terms of their “employ-ability”. In the Hurley vs Mutsoe case a woman was refused an employment opportunity and it was the employer’s assertion that the woman would be unreliable because she had children. This was absurd but represented/s a widely held misconception held by a male dominated workplace. Thankfully the Constitution has clear and defined provisions regarding equality and labour practices. Section 9 of the South African Constitution 1996 provides for the right to equality and this right encompasses all aspects of human legal, political, social and economic engagement. Throughout the world in “progressive, Constitutional” countries the right to equality has been interpreted in the same way so as to include women in the work place as well.

In as far as gender wage gaps are concerned the International Labour Organization has had related Conventions and recommendation in place. As matter of fact gender equality is enshrined in the ILO’s Constitution. The ILO true to its form and substance have adopted with wide support the following Conventions; The Equal Remuneration Convention, The Discrimination (Employment And Occupation) Convention, The Workers With Family Responsibilities Convention and The Maternity Protection Convention. Member States of the ILO have to a large extent blended these Conventions into their legislation and Constitutions as well. (So much laws but what’s the situation on the ground?🤔) In South Africa much has been done legislation-wise with Acts such as the Employment Equity Act 55 of 1998, Labour Relations Act and Basic Conditions of Employment Act, the issue of gender parity are well provided for. However the reality has not matched the legal provisions. Women are still discriminated against in terms of their incomes as compared to men. In the USA research points out that women generally earn 84% of what men earn while in South Africa the percentage varies from about 60% to 80% with the global average according to the ILO being a 20% difference according to the ILO. Scandinavian countries have performed better in this regard though with the gap being an average of 4% meaning women tend to earn about 96% of what their male counterparts earn (Could it be because of Thor or its the cold weather?)🙃👏

Medical Condition

It is not uncommon to have someone being discriminated against because of their medical condition. Before we proceed on this it is important to note that some people can be denied access to some jobs or certain forms of employment due to the inherent requirements of a particular job. For example a mine worker required to operate dangerous equipment can lose or be denied the job if he/she is for example epileptic. This wouldn’t be unfair discrimination as the inherent requirements of the job naturally would exclude such persons who do not medically pass the criteria. However In the Stuart Murdoch vs City of Cape Town case such a matter was before the court. The court had to decide whether the denial of an application to be a fireman due to the applicant being diabetic was lawful. The Labour Court held that the applicant had been discriminated against on the basis of his medical condition. The applicants condition had no bearing on his ability to perform the duties of a fireman. The Court further held One of the fundamental purposes underlying equality legislation is to eliminate arbitrary decision making in the workplace and in this particular case the decision to deny the application should have been done with proper expert consultation. In Southern African those with HIV and AIDS suffer such discrimination and a lot of the time it is unwarranted and or unfair. There is a great deal many cases dealing with this, i will discuss this at length in part 2 of this article. Whereas someone can be denied employment due to failing to meet inherent requirements of a particular job such decision may not be made arbitrarily absent expert consultation.

Legislation/The Constitution

Section 1 of the Constitution RSA is founded on the values of ‘human dignity, the achievement of equality and the advancements of rights and freedoms’.

As mentioned above the Constitutional at section 9 provides for equality as a human right. The right has major consequences in the political, social and economic spheres of each individual. In as far as employment is concerned section 9 has a large bearing. Read together with section 23 of the Constitution the right to equality in employment is central right. The right to fair labour practices is in essence tied to the right to equality. Making fair labour practices a Constitutional right is a relatively new development and the jurisprudence around it is fairly recent and is in its early stages of development. Equality in the workplace normally seek to establish equality between the genders, ages, sex, race and others. Other related Constitutional provisions are the right to freedom of expression and freedom of association which have a strong bearing on the right to equality (Unions, lawyers and mostly blue collar workers love this😐). South Africa is a good example of a country that has adopted the ILO’s recommendations and conventions. Legally as it is in most countries it looks good but on the ground there is much work to be done. However having a sound legal framework to work from is a good start.

The Employment Equity Act is the enabling legislation of said Constitutional provisions. S 5 & 6 of the EEA contain a generally expressed obligation to promote equality by eliminating unfair discrimination in the workplace, and a prohibition of unfair discrimination on specified and other grounds. However Discrimination in itself is not prohibited; it is only unfair discrimination which is prohibited. The Constitution does allow for limitation of some rights by law of general application (s36 of Const). The EEA does make provisions for the limitation of the right to equality in the workplace. S 6(2) sets out defenses against discrimination which are

Affirmative action measures and inherent requirements. Of course the nature of some work entail having specific skills or attributes. It really is what it is but as previously mentioned failure to meet these criteria cannot merely be a random decision by a random guy, it has to be determined lawfully by relevant experts.

Part1 End

Equality in the workplace is a broad subject that includes a broad spectrum of issues. We have only looked at the primary issues that are essential to the “equality in the workplace” issue. Other issues such as race, treatment immigrant workers, nepotism and others I shall discuss in part two of this article. To be fair though much work has been done to address the “equality issue” around the world and some good legal frameworks are in place. This is however not enough, equality is not a favour but a responsibility and inherent right. We need to do better and truly achieve equality for all!

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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.

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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’.



*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

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