Faith Gosha

Unpacking Some Zimbabwean Medico-Labour Law Contained in The Labour Relations (HIV and AIDs) Regulations, 1998

By Caleb Mucheche

INTRODUCTION

Zimbabwean labour law responded to the HIV and AIDS scourge by the enactment of legislation that specifically deals with this particular area at the workplace by the legislature. The aforesaid legislation is in the form of a statutory instrument known as Labour Relations  (HIV and AIDS) Regulations, 1998[1] (“hereinafter referred to as the HIV and AIDS Regulations”). The HIV and AIDS regulations are designed to provide a legal guideline to both an employer and an employee concerning the subject matter contained therein.  Suffice to mention that the concerned regulations are divided and arranged into eleven parts which will be addressed in this paper for the legal benefit of the entire spectrum of the Zimbabwean society, be it employer or employee or some other stakeholder or interested party who may be either infected or affected by HIV and AIDS in one way or the other.

Title of the HIV and AIDS Regulations

The title appears in part one of the regulations. This is the legal title which provides a name for the regulations. It is worded as follows:

“ These regulations may be cited as the Labour Relations (HIV and AIDS) Regulatiobns,1998[1].”

The title of a legislation is inserted for the convenience of the reader or user. These regulations have an overriding  and tailor made  superseding legal status in any employment relationship by virtue of the fact that they are made in terms of section 17 of the Labour Act which gives the relevant Minister of Labour broad legal powers to make far reaching regulations that create minimum conditions of employment in Zimbabwe[2]. The fact that the HIV and AIDS Regulations are made in terms of section 17 of the Labour Act is res ipsa loquitor from an ex facie reading of the clear and bold print within such regulations worded as follows:

“ IT is hereby notified that the Minister of Public Service, Labour and Social Welfare, in terms of section 17 of the Labour Relations Act [Chapter 28:01], has made the following regulations-‘’

[1] See section 1 of SI 202/1998

[2]  Section 17(1) & (2) of the Labour Act [Chapter 28:01] provides that, (1) Subject to this Act, the Minister, after consultation with the appropriate advisory council, if any,  appointed in terms of section nineteen, may make regulations for the development, improvement, protection, regulation and control of employment and conditions of employment and (2) Where the Minister has made regulations in terms of subsection (1), every contract, agreement of any kind whatsoever, determination or regulation made in terms of any enactment which related to the employment of any employee to whom such regulations relate and which provides terms and conditions less favourable to the employee than those specified in the regulations, shall be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it in conformity with such regulations.

LEGAL INTERPRETATION OF THE HIV AND AIDS REGULATIONS

The regulations contain an interpretation of some words, terms and phrases used therein. The meaning ascribed to the words, terms and phrases in the regulations is a legally binding meaning which must be used in construing or interpreting the HIV and AIDS Regulations.  Testing of HIV and AIDS can be done either directly or indirectly The interpretation part of the regulations is carefully and elaborately worded as follows:

“ In these regulations­-

“AIDS” means acquired immune-deficiency syndrome and includes the AIDS-related complex;

“HIV” means human-immuno-deficiency virus;

“testing” in relation to HIV includes-

• any direct analysis of the blood or other body fluid of a person to determine the presence of HIV or antibodies to HIV; or
• any indirect method, other than testing of blood or other body fluid, through which an inference is made as to the presence of HIV;

“related communicable disease” means any communicable disease whose transmission may be linked with HIV due to its transmission through body fluids or whose risk of clinical disease may be increased due to the presence of HIV;

“medical practitioner” means a person registered as a medical practitioner in terms of the Medical, Dental and Allied Professions Act [Chapter 27:08].

Legally Compulsory Education of Employees On HIV and AIDs by an Employer

Part three of the  HIV and AIDS regulations contain some significant legal provisions for the dissemination of information by an employer to his/her/employees regarding HIV and AIDS. The sharing of sound, relevant and important information on HIV and AIDS at the workplace through the active participation of an employer may help prevent and cure HIV and AIDS as well as combat stigmatisation of those infected by HIV and AIDS at the workplace.  There is a need for a government-controlled or supervised monitoring and evaluation of practical enforcement of compliance by every employer in Zimbabwe, be it in the private or public sector (even though the HIV and AIDS Regulations under legal scrutiny do not specifically apply to the public[1] sector employees),  with this noble legal provision for the education of employees on HIV and AIDS as part of the wider efforts to fight the challenge of this disease in the country so that the nation’s workforce is protected from destruction. The law makes it compulsory or mandatory for every Zimbabwean employer to educate every person employed by that particular employer during normal working hours regarding HIV and AIDS in terms of section 3 of the Labour Relations ( HIV and AIDS) Regulations which provides as follows;

“ Every employer shall cause to be provided for the benefit of every person employed by him, and at such place and time during normal working hours as he may appoint, education and information relating to-

• the promotion of safe sex and risk-reducing measures in relation to sexually transmitted diseases; and
• the acquiring and transmission of HIV; and
• the prevention of the spread of HIV and AIDS; and
• counselling facilities for HIV and AIDS patients. (emphasis added by underlining)

It is noteworthy that the HIV and AIDS Regulations jealously guard against the use of unqualified or bogus persons by an employer in the education of employees on HIV and AIDS at the workplace. The law clearly stipulates that the credentials of a person whom the employer must use or hire to furnish employees with education on HIV and AIDS must be that the person must possess sound knowledge or expertise in matters relating to HIV and AIDS meaning that such a person to offer that education must not be a novice or self-proclaimed expert but a genuine expert with empirical evidence to prove such sound knowledge and expertise which may be in the form of possession of relevant qualifications in the medical field earned from a recognised college or learning institution. The law does not countenance fake experts for providing employees with education on HIV and AIDS at the behest of the employer meaning that it is not every proverbial “Tom”, “Jack” and “Hary” who must purport to provide employees with education on HIV and AIDS at the workplace. Some unscrupulous persons have been on the loose leash or prowl trying to cash in and wrongfully, unlawfully and improperly milking money or resources from unsuspecting members of the public under the guise of providing education and information on HIV and AIDS but their education and information remain fake and toxic. It is submitted that if an employer uses an unqualified person without sound knowledge and expertise in HIV and AIDS purporting to provide his/her/its employees with education on HIV and AIDS, that employer, apart from other criminal legal sanctions, the concerned employer may be found liable for huge sums of money and damages under the law of delict for wrongful, unlawful and harmful conduct against the affected employees. Also, an employer who hires an unqualified person to pretend to “offer” education to his/her/its employees about HIV and AIDS runs the risk of damaging the professional reputation of such an employer. The law, therefore, contains very stringent legal provisions to guard against the sharing of education on HIV and AIDS at the workplace by employers through using unqualified persons by setting  the legal  bar for persons who are eligible to offer such education as follows
:

“ Education and information shall be provided in terms of subsection (1) by persons who have proven sound knowledge and expertise in matters relating to HIV and AIDS, who are able to communicate information with accuracy and consistency[2].” (emphasis added by underlining).

Ever since the HIV and AIDS scourge reared its ugly head in Zimbabwean society, several co-artists have masqueraded as providing information, education, knowledge or cure about HIV and AIDS only for them to turn into merchants of darkness, folly and purveyors of falsehoods but in some cases after fleecing their innocent and pliable victims of fortunes in money and resources. One such case in mind is the sad story of the famous late former Zimbabwean heavyweight boxer by the name Proud Chinembiri (also known as Kilimanjaro for his remarkable boxing prowess) who in the late 1990s was allegedly reported in the local press known as  Parade magazine and later by the Bulawayo based Chronicle[3] newspaper, to have been cheated of his lots of money by someone who alleged that he was able to cure HIV and AIDS.

[1] The reason for the concerned HIV and AIDS Regulations not applying to public sector employees or civil servants is that they were enacted in terms of section 17 of the Labour Act and the same Labour Act does not apply to public sector employees by virtue of section 3(1) and (2) thereof which says, (1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution and (2) For the avoidance of doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

[2] See section 3 (2) of S.I 202/1998.

[3] See the Chronicle article of 15 May 2011 which reported, “founding fathers of Zimbabwe will almost always trace the inspiration of their heroic efforts to one giant, Benjamin Burombo. But there was to be another Benjamin Burombo in post-independent Zimbabwe who made headlines for different reasons altogether. At the height of the HIV and AIDS pandemic, when anti-retroviral drugs were not freely available and the virus was taking its toll on the nation, the self-styled “Doctor” Benjamin Burombo rose to fame with claims that he could cure diseases associated with the virus. He drew many to him and in the process enriched himself. But many doubted that he was genuine and wondered how long he would last. The then Minister of Health and Child Welfare, Dr Timothy Stamps dismissed Burombo’s claim that he could cure Aids-related illnesses. But Burombo was adamant. Among his patients was the late Zimbabwean heavyweight boxing champion Proud “Kilimanjaro” Chinembiri. Burombo’s stakes rose quite high when it was reported that he was “treating” the famed boxing champion. Unfortunately, Kilimanjaro died. It was not long before Burombo’s world collapsed and he soon disappeared from the limelight. Two decades later, the former vibrant and talkative herbalist is a shadow of his former self. The man, who claimed to possess magical healing powers and herbs, is now broken. His dream of finding a cure for Aids had died. The BMWs and Mercedes Benzs have also disappeared and have been replaced by a modest Renault 12. His Kuwadzana house which used to play host to hundreds of Zimbabweans and foreigners seeking help, now tells a different and sad tale. Some sheep could be heard bleating in his backyard when The Herald visited him on Wednesday. Now 51 years old, the man who used to claim that his wonder herbs were from deed-down Kariba Dam, has lost the bling. At his gate there is an inscription; “Trespassers will be prosecuted” Readmore…

By Labour & Commercial Lawyer Caleb Mucheche

Introduction

Labour law in Zimbabwe has evolved and expanded from pre-colonial, colonial and post-colonial independent Zimbabwe to present day. The history of labour law development in Zimbabwe will be remiss or incomplete without giving due recognition to the supreme  sacrifices made by early torchbearers for labour justice in Zimbabwe like the late independence forebears, nationalists cum trade unionist labour leaders like Benjamin Burombo, Masotsha Ndlovu, Joshua Nkomo, Herbert Chitepo, Leopold Takawira, Edison Sithole, Samuel Parirenyatwa, George Silundika and Jason Moyo to name but a few not in any hierarchy, order or superiority. One of the chief purposes of labour law is regulation of economic redistribution of wealth in society between the haves and have nots by addressing bread and butter issues of the stomach. The fight for the independence of Zimbabwe cannot be divorced from the fight for economic emancipation of the majority or masses, for without economic independence to access and enjoy the means of production in society, there is no meaningful independence for the majority people. This legal analysis and commentary of the Labour Amendment Bill, 2021 traces the historical evolution and development of labour law in Zimbabwe before and after independence and the practical implications of such amendments to the dynamic employment relationship.

Justification for regulation of labour law to counterbalance inherent unequal bargaining power between an employer and employee

The lopsided relationship of economic dependence by an employee on an employer coupled with higher economic bargain power of the employer makes a mockery and laughingstock any notion that an employer and employee are equal in such a relationship of employment as was proven by the common law power of arbitrary termination of employment that ensued pursuant to the Zuva Supreme Court judgment of 17 July 2015. The lack of equality in an employment relationship characterised by economic disparity between an employer and employee is an open secret or matter of public knowledge especially in a developing nation like Zimbabwe. Inequality is treating unequal persons equally and equal persons unequally. An employer who owns and controls the means of production has more weight and say in an employment relationship than an employee who is economically dependent on the employer. Labour law seeks to counterbalance the existing inherent inequality in the employment relationship and competing interests of employer and employee via statutory regulation. Consequently, this paper seeks to unearth, unravel and unpack the proposed law by availing an extensive commentary and intensive legal analysis of the Labour Amendment Bill, 2021.

International Law influence on Zimbabwean labour law under International Labour Organisation (ILO) Conventions and Recommendations

More than five amendments have been made to try and align Zimbabwean Labour Law with international best practice and the coming in of new trends. This is in order to give influence of the International obligations of the nation as a member state of the International Labour Organisation (ILO). This promotes the creation of a good and economical labour market that entices good investment opportunities and motivates investments in accordance to international developments such as ILO Conventions and Recommendations and Best Practices. In light of the above, one would appreciate that the development of Labour Law in Zimbabwe is not stagnant. This commentary is based on the review of the developments that the Labour amendment Bill of 2021 seeks to make on the existing provisions of the Labour Act [Chapter 28:01] and the effectiveness or efficacy of such developments read more..