Rumour has a solid place in Malawian society. There are just too many things which begin as rumour but eventually turn out to be true. Cashgate, for example. All the rumouring finally came to a head one ugly evening and we, finally, couldn’t pretend that all was well. We’ll talk about rumour in Malawian society some other time. For now, let me focus on my contribution this week.
It seems all rumouring about the Government wanting to sponsor a law meant to ‘deal’ with strikes isn’t just empty talk. As confirmed by media reports, the Government indeed wishes to amend the law so that employees that are on strike should be denied their pay. The irritation behind all this, so far as I can tell, are provisions in our labour laws that, among other things, prohibit an employer from dismissing or withholding pay from an employee who is on a legal strike.
As often the case, the intended response by the Government is not only unenlightened but it is akin to bringing a sledge hammer to kill a fly. This type of response reveals either a malicious conflation of issues or a deep seated ignorance about the history of labour relations, not only in Malawi but also globally.
Let us begin by hazarding the possible justification(s) for the proposed course of conduct by the Government. From media reports, it seems the Government is worried about the proliferation of illegal strikes. Well, if the problem is that there are too many illegal strikes, then the remedy for that clearly is not in amending the law. Our laws already provide avenues for dealing with employees that are on an illegal strike. For the avoidance of doubt, our labour laws protect only those employees that are on a legal strike.
Because the law has already given the employer options for dealing with employees that are on an illegal strike, it would be an overkill to start tampering with the protections and rights that the law accords those who are engaged in a lawful strike. In any event, if there is a dispute about whether a strike is legal or illegal, courts are always there to resolve this.
The employer/employee relationship is a ubiquitous relationship. It is a relationship that has existed among human societies for a very long time. Historically, though, it is a relationship that was always tilted in favour of the employer. It was only with the incremental recognition of employees’ rights that a semblance of balance between the employer and employee was achieved. It is thus not strange that the International Labour Organisation (ILO) is one of the oldest inter-governmental organisations in the world – it even predates the United Nations. In spite of the recognition of various employee rights, the crude truth is that the employer/employee relationship remains skewed in favour of the employer which is why employees still need several safeguards to protect them from abuse, exploitation and victimisation.
One of the ways in which employees have, traditionally, been able to reclaim a semblance of balance in their relationship with employers is by organising and taking collective action. The right of employees to organise and take collective action has been recognised in several international human rights instruments and also finds expression in our laws. Modern labour relations are premised on the recognition of certain key employee rights in a bid to even up the balance of power between employers and employees. If this balance of power is carelessly tampered with, there would be no point in sustaining a regime of labour rights.
Amending the law to penalise employees who go on strike will kill labour rights in Malawi. Labour rights, some may contend, are a luxury but we must not forget that the enjoyment of other rights in the Constitution depends on their being vibrant labour rights. The amendment option, if I may call it that, is a misdiagnosis of the problem. Labour unrest is often indicative of deeper economic problems. In our case, it is probably the fact that people can no longer sustain decent livelihoods on their current earnings which leads them to keep demanding more for their labour. Engaging in a strike, therefore, could very well be, apart from being an exercise of constitutional rights, a mechanism for survival in times of economic hardship.
To those still bent on amending our labour laws, I would say tread carefully. I will not waste time highlighting the many international instruments that Malawi has signed and ratified wherein employees are guaranteed a plethora of rights including the right to withdraw their labour. I will contend myself by highlighting section 31(4) of the Constitution which states that ‘The State shall take measures to ensure the right to withdraw labour.’ In any event, have we not learnt any lessons from some of those willy-nilly constitutional amendments that came back to haunt us?
Generally, we must be very worried when the powers that be have a quick resort to amending laws in order to solve their immediate problems. It smacks of a failure to properly understand a problem before devising a solution.
* Mwiza Jo Nkhata is an associate Professor of Law, University of Malawi.