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Daniel Nemukuyu Senior Court Reporter
Government has failed to respond to the maternity leave constitutional challenge filed seven months ago, despite being served with the papers and the Constitutional Court will now hear the matter in the absence of the opposing papers.

Ms Emelda Mhuriro, the general secretary of the Civil Service Employees’ Association, approached the Constitutional Court challenging the constitutionality of Sections 18(1) and (3) of the Labour Act.

The pieces of legislation only allow female employees of at least one year service to go on fully-paid maternity leave thrice with one employer.

The laws give a limit of the maternity leave periods for women and also deny newly employed women the right to maternity leave.

Ms Mhuriro contends that the laws were unconstitutional as they violate Section 65 (7) of the Constitution, which grants unrestricted fully-paid maternity leave as a right to all working women.

The woman, through her lawyer Mr Caleb Mucheche of Matsikidze and Mucheche law firm, cited the ministers of Public Service, Labour and Social Welfare; Justice, Legal and Parliamentary Affairs; Women’s Affairs, Gender and Community Development and the Attorney-General as respondents in the constitutional challenge filed in January this year.

Six months after the filing of the challenge, Mr Mucheche wrote to the chief registrar of the Constitutional Court seeking directives on how to proceed, considering that the respondents had not filed any responses.

Part of the letter reads: “We duly served the application on the respondents on the 25th January 2016 as the certificates of service on record would show. However, we have not received any notice of opposition from the respondents within the period prescribed in section 4 of Practice Directive Number 2 of 2013.

“Consequently, we humbly implore the registrar to refer the matter to the Chief Justice for directions in terms of Section 4 of the Practice Directive No. 2 of 2013 for the matter to be dealt with as provided for in Section 8 of the said Practice Directive”

The registrar then responded by asking Ms Mhuriro’s lawyers to file heads of argument.

The heads were filed and the matter is now ready for set down.

In the heads of argument the lawyers argued that the laws must be struck down.

Ms Mhuriro argued that Section 65(7) of the Constitution of Zimbabwe guaranteed unlimited right to maternity leave to all female employees, but Section 18(1) and (3) of the Labour Act and Section 39(1), (3) and (4) of the Public Service Regulations, Statutory Instrument 1 of 2000 set conditions for the enjoyment of the right, thereby discriminating against newly employed women.

Section 65(7) of the Constitution reads:

“Women employees have a right to fully-paid maternity leave for a period of at least three months.”

To that end, Ms Mhuriro, on behalf of the civil servants and other employees at large, argued that the laws were unconstitutional and that they should be struck off the statutes.

In the recently filed heads of argument, Mr Mucheche said Section 18(1) of the Labour Act denies newly employed women the right to maternity leave.

“This means that a female employee who has not served for at least one year is not entitled to any fully-paid maternity leave, let alone the maternity leave itself as a right.

“Clearly Section 18(1) of the Labour Act is ultra-vires Sections 65(7) of the Constitution of Zimbabwe and runs foul to Section 2(1) of the Constitution of Zimbabwe,” argued Mr Mucheche.

He added that Section 18(3) of the Labour Act which puts a cap on the number of times a female employee can go on maternity leave was also unconstitutional.

Ms Mhuriro, in her founding affidavit, argues that Section 18(1) and (3) of the Labour Act violates women employees’ rights in general — the right to fully-paid maternity leave, while sections of the Public Service Regulations SI 1 of 2000 violates the right of female civil servants to maternity leave.

It is Ms Mhuriro’s argument that the alleged violation of the right to maternity leave was contrary to the International Labour Organisation’s conventions on maternity leave and rights of women/female employees, and the international law on the protection of women’s rights.

She further argued that the said violation was not reasonably justified in a democratic society.