User talk:Obrien ngwenya

April 2019
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THE IMPORTANCE OF INTERNATIONAL LAW IN GUARANTEEING PRIVATE SECTOR EMPLOYEE'S RIGHT TO FREEDOM OF ASSOCIATION in zimbabwe
Freedom of association is without perplexity one of the fundamental labour rights of employees that is affixed to many democratic societies. It is an enabling right which entitles workers to form and join workers' organisations of their own choice in order to advance common organizational interests. Of the entire labour rights, freedom of association is frequently exposed to abuse by administrative bodies and arbitrary laws masquerading as protective laws for public interest to silence the voices of employees in protecting their rights and interests. Beyond doubt the labour right to freedom of association under Zimbabwe’s municipal law stems from the influence of international law which creates some legal obligations to its signatories by the force of pactum sunt servanda principle. It is paramount to note that the guarantee of this right in Zimbabwe is at the mercy of State’s competence to abide to its legal obligations under international law. Therefore the objective of this essay is to weigh blow by blow the importance and the weakness of international law in guaranteeing private sector employees’ right to freedom of association in Zimbabwe. Firstly, interrogation shall focus on a brief historical chronology of this right then followed by a close examination of this right. Scrutiny shall also elongate to the extent of this guarantee in as far as internalization of international law into Zimbabwe’s municipal law is concerned. Brief background of this labour right under international law International law is a body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. In cognizance of the above, the key international law provisions that promote and protect the realization of this right includes International Labour Organization with its relevant Conventions (herein after be referred to as ILO) and Universal Declaration of Human Rights  (to be referred as UDHR). The labour right to freedom of association at international level chronicles from the sweeping changes which took place in the wake of liberalization, privatization and globalization characterized by unprecedented increase in global and individual prosperity combined with intolerable exploitation of the working class. Those events brought in a trail of unimaginable misery and suffering to the common workers .This includes denying rights and thwarting workers voices through arbitrary legal codes across the societies. The continued exploitation of workers sneaked into the 20th century until the long-term consequences of the first world war propelled the need to put oppression in labour activities to halt with the birth of the ILO in 1919 and the Philadelphia Declaration of 1944.The aforementioned provisions countered the systematic exploitation of workers by conferring them rights to associate for a common cause. This is a standard avenue recognized as to assist the employees in engaging their employers to collectively discuss disputes. The aforementioned changes and the continuous spreading of democracy inspired the continuous enactment of many Conventions to support that right. Contents of the right in Zimbabwean context Without doubt, these international provisions provides a broader and an expansive scope of this right thereby burdens the signatories (member States) to ratify wholly or partially some of the provisions with care of a threshold of its applicability. Plausibly through section 327 of the Constitution, Zimbabwe accommodated an elaborate provision of this right under the great chapter 4 of the declaration of rights .The right to freedom of association is enshrined under section 58 of the Constitution in which the right bearer is “every person” thus includes employees. It can be submitted that this right is strongly connected to section 65 of the Constitution on labour rights which then dissected the contents of this right and the extent of its application. In casu, section 65 of the Constitution provides the characteristics of this right which involves the freedom to form and join trade unions, join employee organizations of their choice inter alia. The legislator crafted the right to freedom of association positively and negatively under section 58 of the Constitution. This means that it confers a right to and a right not to join. Thus in relation to labour law, no employee should be compelled to join any organization but rather is done voluntarily. This voluntary element is clearly expressed under section 58(2) of the Constitution. This right also enjoys protection under judicial recognition as in Makanyisa v Securitas (PVT) Ltd where the court limited the employer from interfering with the enjoyment of this right by the employees (cannot terminate the employees’ contract with a union).However this right is not absolute since section 65 and 58 are limited by section 86 of the Constitution thereby factors like public policy, public interest and legality comes into play to limit that right. All in all, limitations must not infringe the substantive standards outlined by international law but the limitation must be justified. Importance of international law A submission that international law institutes a standard yardstick for the protection and correct treatment of the employees’ right to freedom of association is an undeniable significance to the Zimbabwean jurisdiction so as to curb the limitation of this right arbitrarily. Considering article 20 of the UDHR which grants a right to freedom of association to every person including employees in Zimbabwe, the UDHR becomes a core standard measurement for the application of this right because of its universality. Macbeth in support of this notion embraced that, UDHR is not just a mere agreement but is a declaration of basic principles of human rights and freedoms thus saves as a common standard to all nations. Appreciating the universality of the UDHR and the provisions of ILO, a guarantee of this right is established by the inclusion of this right under the supreme law which consist similar contents of those provisions under section 65 of the Constitution. In support of that, Mucheche acknowledged that a mile stone in labour law was reached by adopting a 2013 Constitution which embodies the labour rights. In addition to the above point, article 2 and 3 of the 1948 Convention clearly sets out some standards which involves voluntary joining, forming and the self-regulatory status of the workers organizations. As a significance, these outlined standards limits the legislature from departing arbitrarily from a common standard established by international law. Evidently, section 65 of the Constitution  reflects the exact standards outlined in the aforementioned international provisions although with a few limitations. The effect of this is that, international law harmonizes the municipal law and the practical applicability for the exercise of this right. Even the preamble of the Labour Act exhibits a conformity to international law by providing that “to give effect to the international obligations of the Republic of Zimbabwe as a member state of the ILO and any organization that it is a party to…” This can be affirmed in Bankers Association of Zimbabwe v Banking and Finance Managers Union of Zimbabwe  where the court embraced the conformity to the international law jurisprudence which outlines the standards of employees to join trade unions. Therefore international law becomes a floor base for the first step to the protection and realization of this right in Zimbabwe’s municipal law. Providing effective enforcement mechanisms for the protection of the employees’ right to freedom of association in Zimbabwe is a well embraced importance of the international law. It is trite at law that, enacting a right without enforcement mechanisms is just an abstract. Plausibly, international law sufficiently provides a substantive part of the right to freedom of association as can be witnessed by many Conventions and provisions. However, effective enforcement is what reincarnates the element of guarantee to put the right into action. Moeckli noted that, human rights are very vulnerable to unchecked arbitrary municipal laws. Therefore without supervision and some enforcement mechanisms to ensure compliance, the guarantee of this right under international law will suffer the same fate as the judgment in Mike Campbell (Pvt) Ltd v Zimbabwe where the SADC Tribunal lacked enforcement mechanisms to effect the relief granted which was countered by an arbitrary amendment in Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, The employees right to freedom of association under Convention 87 of the ILO and article 20 of the UDHR have been conformed with under section 65 ,58 of the Constitution. The core reason for conformity is because of the legal obligation under international law that is constantly supervised by a board called Human Rights Council which mandates all the signatory States of ILO to submit a document to confirm compliance. According to Macbeth, the council also elongates into reviewing human rights performance of states to ensure compliance with the obligations as per pactum sunt servanda. Article 26 of the ILO Constitution also provides an avenue to every party concerned to file a complaint with the ILO office for non-compliance to any of its ratified Conventions. Thus international law is important for enforcing compliance to effectively protect this right. International law guarantees the right to freedom of association in Zimbabwe by providing remedies at international level. The establishment of quasi-judicial organs specifically for labour disputes under international law is a milestone to labour law. Under ILO there is a quasi-judicial organ called ILAT (International Labour Administrative Tribunal). According to Macbeth, this body can award remedies at international level. Any employee can appeal to the ILO Administrative Tribunal if not satisfied with the decisions of the municipal courts upon violation of this right. However its decision cannot be binding if it is inconsistent with the constitution by the force of section 2 (1) .Its judgment cannot be registered as in Mike Campbell v Republic of Zimbabwe thus becomes a weakness of international law in guaranteeing this right in Zimbabwe. In conclusion, labour right to freedom of association in Zimbabwe is an internalized creature of international law. Therefore international law is important in guaranteeing that right in Zimbabwe by providing an avenue for an external remedy through international quasi-judicial organs in cases of disputes, sets up a standard of this right and providing effective enforcement mechanisms to protect this right in Zimbabwe’s municipal law. However this guarantee does not enjoy absolute recognition in Zimbabwe. It is limited by legality, public policy and even the competence of a state to comply with international law. Therefore the guarantee of this right is at the mercy of the internalization process of international law into municipal law.

BIBLIOGRAPHY Text Books

Adam Macbeth, International Law of Human Rights (2017) 2nd Edition Oxford University Press Caleb H Mucheche A Practical Guide to Labour Law, Conciliation,Mediation and Arbitration in Zimbabwe (2014) African Dominion Publishers. David Moeckli, International Human Rights (2018) 3rd Edition Oxford University Press James Atleson International Labor Law,Cases and Materials on Workers' Rights in the Global Economy (2008) 1st Edition ,West Academic Publishing Malcolm Shaw International law Encyclopædia Britannica (2019) Legislation

Constitution of Zimbabwe Amendment (No.20) Act 2013 Freedom of Association and Protection of the Right to Organise Convention, 1948: International labour Organization Labour Act [Chapter 28:01] Universal Declaration of Human Rights Case Law Bankers Association of Zimbabwe v Banking and Finance Managers Union of Zimbabwe Makanyisa v Securitas (PVT) Ltd LC/H/180/0 Mike Campbell (Pvt) Ltd v Zimbabwe Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land by Obrien ngwenya Obrien ngwenya (talk) 09:05, 7 December 2020 (UTC)