A UNIVERSITY of Zambia lecturer has argued that UNZALARU general secretary Dr Kelvin Mambwe’s statement that if elections were called today, only an idiot will vote for PF does not constitute willful violation of the law.
Recently at a press briefing, Dr Mambwe said PF would only be voted for by those eating with them or idiots, as he complained about non-payment of December salaries to UNZA lecturers by government.
The government has since threatened to have the certificate for University of Zambia Researchers Union (UNZALARU) cancelled.
But UNZA employment and criminal law lecturer James Kayula says Dr Mambwe was within the law, as he was speaking for employees.
“From this objective standpoint, it could be seen that the statement of the General Secretary, although hurtful, and probably outside its mandate, the said statement does not constitute ‘willful violation’ of the law as provided under Section 12 (c) of the Industrial and Labour Relations Act,” he argued in a write-up.
“There is a pressing need to pay particular attention to the wording of the ground that the Labour Commissioner seeks to rely on in the cancellation of the certificate of registration. The phrase ‘wilful violation’ is different from simply a ‘violation’. The threshold in examining whether one’s conduct constitutes ‘willful violation’ or not is much higher than when considering simply a ‘violation’.”
Kayula contended that for one to arrive at the verdict that one’s behaviour constituted willful violation, attention must be paid to the context as well as the circumstances under which the conduct in question manifested.
“Therefore, a contextual and wholesome consideration of the factual circumstances clearly indicates that the statement from the general secretary does not fit into the requisite pigeon hole of ‘willful violation’ of the Act as envisaged under the Act. The drafters of the law were clear that not any violation of the Act would attract the ultimate penalty of deregistration,” he explained.
“Other violations of the law can obviously be remedied through other intermediary administrative sanctions that may include warning or fines. However, the hammer of deregistration should only fall in clear circumstances of ‘willful violation’ of the Act. The submission, therefore, is that the statement in question does not fall within the precincts of ‘willful violation’ as provided for by the Act, and consequently, the Labour Commissioner’s attempts to deregister UNZALARU is not supported by the law.”
Kayula questioned the Labour Commissioner’s silence on UNZA management’s failure to pay lecturers.
He said the failure by management amounted to a serious breach of the law.
“Further, it is strange and intriguing as to why the Labour Commissioner has chosen to pay a deaf ear to the consistent breach by UNZA Management, not only of the conditions of service but also the Employment Code Act in as far as paying wages on time is concerned,” said Kayula.
“There have not been any sanctions against UNZA Management by the Labour Commissioner regarding this matter, notwithstanding, that this breach by UNZA Management is habitual and does not seem to be abating at all. The quick and grave action by the Labour Commissioner of setting in motion processes to deregister UNZALARU at the seemingly slightest infraction of the Act while keeping quiet on UNZA Management’s consistent and clear violation of the law is highly suspicious. Not only is it suspicious, but also a blatant and manifest case of selective application of the law for one’s convenience. This, in itself is lawlessness!”
Kayula has asked the Labour Commissioner to first address what he termed as incompetence from relevant government ministries.
“If the Labour Commissioner is truly and genuinely moved by the violations of labour legislation as he appears to be, he must begin by addressing the incompetence at the Ministry of Finance to release the grant on time, the incompetence at the Ministry of Higher Education to secure the grant on time, which fuel the failure by University Management to pay workers on time. This is the root of the problem from which the Labour Commissioner should not shy away,” said Kayula.