Opinion / Columnist
When firing backfires
25 Apr 2018 at 02:14hrs | Views
As tempting as it is to engage in a full-on legal analysis of the government's decision to fire striking nurses, I will keep this piece as general as possible because the legality of the actions can be an entire thesis of its own.
Vice-President Constantino Chiwenga, who was tasked with heading or overseeing the negotiation process with nurses, issued a Press statement which announced the dismissal of the nurses for not accepting the amount agreed (which apparently now seems like money owed to the nurses) and for pushing a political agenda.
So, let's dispense with some preliminary thoughts - that Chiwenga cannot fire the nurses as he is not their employer. Even if he was, he cannot fire people en masse as if there are no labour laws in place. Again, if we pretend that he had the power to fire nurses, he could not have possibly done this through the Press before engaging the individuals concerned.
The illegality cannot be cured even if the relevant employer has now purported to issue the directive. It is clear that the employer was acting under the dictates of the Chiwenga instead of exercising an unfettered discretion as required — this again would render the decision to fire them unlawful.
Broadly speaking, the "fired" nurses would still be able to rely on the right to administrative justice (S68 of the Constitution) which secures the right to lawful, procedurally and substantively fair administrative conduct. It doesn't take a lawyer to note that this was ostensibly violated by the government.
The issue here is simply that government's conduct was a political miscalculation that will single-handedly undo all the globetrotting they have done and other initiatives to market Zimbabwe as being open for business. Not even former President Robert Mugabe, fired so many people in one go though of course the case of the 627 teachers fired in 2002 for participating in what government viewed as an illegal strike, comes to mind. Effectively, the new administration is breaking records, but for the wrong reasons.
The dismissals will no doubt show that there are still several limited freedoms in Zimbabwe and that if anything, the current administration is less tolerant than the Mugabe-led administration. It may well be that this is the style of governance one can expect should Zanu-PF win the mandate to govern in the coming elections. It does seem that the true colours of the government are becoming more visible and apparent and if this is the case, then one can only hope that they don't win that mandate as they will be no different from the tyranny of the previous administration.
It would seem government doesn't have sound legal advisors or political strategists and if they do exist then they should be fired because they have allowed them to fall into a pit they will find hard to get out of. With an election coming up, government can be rest assured that those dismissed nurses will not be voting for them.
The game at this stage should be to appear to be a moderate, liberal thinking government that respects the rule of law and is tolerant even if they pretend to be — that would give off a sense of a different way of governance. By acting in the way they have, the government could potentially have also chased away potential investors. Any government that can act arbitrarily and unlawfully, can surely not be trusted to create an environment conducive for investment. That's the bigger picture they seem to have missed.
The ramifications of their decisions will probably have more of a political and economic effect than a legal one. Arguably, there was still more room for negotiation between the relevant parties and instead of using the threat of dismissal to force nurses back to work, government should instead have made more concessions.
The argument that government is broke or cannot afford the desired increases is laughable considering how government has been spending money on buying chiefs cars (the motives of which are still questionable).
There has been unnecessary spending by government such as booking artistes to perform at functions for $7 000 per artiste or hosting unnecessary functions or commemorations. As I have previously stated, there are things Zimbabwe cannot afford to have at this stage.
The health system has become a ticking time bomb that government has failed to adequately diffuse. Firing nurses to replace them with retired nurses is a foolish decision that will backfire. There is a reason why those nurses retired and in any event, they can only be employable for a short period of time. This logic has escaped government completely and they somehow believe the retired nurses have a new found fresh lease of life that will give them ten or twenty more years of service. The government would still have to follow the correct legislative process of recalling retired nurses and if they fast-track this or avoid it altogether, that too would be illegal.
In the long run, it is ultimately the citizen who will suffer since nurses are considered primary healthcare practitioners in Zimbabwe and they run most of the clinics where there are no doctors. The actions of the government will only worsen this.
Lastly, the paranoia of the government is worrying in that they believe that 13 000 nurses are all pursuing a political agenda to undermine it. This is the kind of paranoia that Mugabe spent a greater part of his presidency addressing, to the detriment of the country. The absurdity of this paranoia warrants no further discussion.
All government needs to do is to sit down and negotiate constructively with the nurses without resorting to bullish and unlawful tactics.
If they fail to rectify their suicidal decision to fire the nurses, the current administration proves its critics who believe that they are a reincarnate version of Mugabe, right …just saying!
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Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr
Vice-President Constantino Chiwenga, who was tasked with heading or overseeing the negotiation process with nurses, issued a Press statement which announced the dismissal of the nurses for not accepting the amount agreed (which apparently now seems like money owed to the nurses) and for pushing a political agenda.
So, let's dispense with some preliminary thoughts - that Chiwenga cannot fire the nurses as he is not their employer. Even if he was, he cannot fire people en masse as if there are no labour laws in place. Again, if we pretend that he had the power to fire nurses, he could not have possibly done this through the Press before engaging the individuals concerned.
The illegality cannot be cured even if the relevant employer has now purported to issue the directive. It is clear that the employer was acting under the dictates of the Chiwenga instead of exercising an unfettered discretion as required — this again would render the decision to fire them unlawful.
Broadly speaking, the "fired" nurses would still be able to rely on the right to administrative justice (S68 of the Constitution) which secures the right to lawful, procedurally and substantively fair administrative conduct. It doesn't take a lawyer to note that this was ostensibly violated by the government.
The issue here is simply that government's conduct was a political miscalculation that will single-handedly undo all the globetrotting they have done and other initiatives to market Zimbabwe as being open for business. Not even former President Robert Mugabe, fired so many people in one go though of course the case of the 627 teachers fired in 2002 for participating in what government viewed as an illegal strike, comes to mind. Effectively, the new administration is breaking records, but for the wrong reasons.
The dismissals will no doubt show that there are still several limited freedoms in Zimbabwe and that if anything, the current administration is less tolerant than the Mugabe-led administration. It may well be that this is the style of governance one can expect should Zanu-PF win the mandate to govern in the coming elections. It does seem that the true colours of the government are becoming more visible and apparent and if this is the case, then one can only hope that they don't win that mandate as they will be no different from the tyranny of the previous administration.
It would seem government doesn't have sound legal advisors or political strategists and if they do exist then they should be fired because they have allowed them to fall into a pit they will find hard to get out of. With an election coming up, government can be rest assured that those dismissed nurses will not be voting for them.
The game at this stage should be to appear to be a moderate, liberal thinking government that respects the rule of law and is tolerant even if they pretend to be — that would give off a sense of a different way of governance. By acting in the way they have, the government could potentially have also chased away potential investors. Any government that can act arbitrarily and unlawfully, can surely not be trusted to create an environment conducive for investment. That's the bigger picture they seem to have missed.
The ramifications of their decisions will probably have more of a political and economic effect than a legal one. Arguably, there was still more room for negotiation between the relevant parties and instead of using the threat of dismissal to force nurses back to work, government should instead have made more concessions.
The argument that government is broke or cannot afford the desired increases is laughable considering how government has been spending money on buying chiefs cars (the motives of which are still questionable).
There has been unnecessary spending by government such as booking artistes to perform at functions for $7 000 per artiste or hosting unnecessary functions or commemorations. As I have previously stated, there are things Zimbabwe cannot afford to have at this stage.
The health system has become a ticking time bomb that government has failed to adequately diffuse. Firing nurses to replace them with retired nurses is a foolish decision that will backfire. There is a reason why those nurses retired and in any event, they can only be employable for a short period of time. This logic has escaped government completely and they somehow believe the retired nurses have a new found fresh lease of life that will give them ten or twenty more years of service. The government would still have to follow the correct legislative process of recalling retired nurses and if they fast-track this or avoid it altogether, that too would be illegal.
In the long run, it is ultimately the citizen who will suffer since nurses are considered primary healthcare practitioners in Zimbabwe and they run most of the clinics where there are no doctors. The actions of the government will only worsen this.
Lastly, the paranoia of the government is worrying in that they believe that 13 000 nurses are all pursuing a political agenda to undermine it. This is the kind of paranoia that Mugabe spent a greater part of his presidency addressing, to the detriment of the country. The absurdity of this paranoia warrants no further discussion.
All government needs to do is to sit down and negotiate constructively with the nurses without resorting to bullish and unlawful tactics.
If they fail to rectify their suicidal decision to fire the nurses, the current administration proves its critics who believe that they are a reincarnate version of Mugabe, right …just saying!
-------
Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr
Source - newsday
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