Alex T. Magaisa
The last two articles have analysed the legal aspects of the recent landmark judgment of the Supreme Court of Zimbabwe in the case of Nyamande & ors v Zuva Petroleum (2015) /how-the-supreme-court-judgment-has-left-the-employee-exposed/. However, in trying to understand this judgment, we need to broaden the analysis and try to locate it within the broader political economy of the country. For this represents a fundamental shift in labour relations, in the relations between labour and capital, as we have known it since independence. How does this judgment fit into the narrative of “the Zimbabwe we want” that has been peddled in various guises over the last few years? We shall see that political parties and Zimbabwe generally, are in a state of ideological flux.
The Socialist Experiment
There was a time, back in the early 1980s, when the Zanu PF Government dabbled in socialism. The ruling party even had a Leadership Code, which among other things regulated its leaders’ ownership of property, among other things. It stated that Zanu PF “constitutes a Socialist Party”. Limiting property ownership, the Leadership Code stated, “ZANU believes that a leader who concentrates on acquiring property, or who personally engages in the exploitation of man by man, rapidly becomes an ally of the capitalists and an enemy of socialism; and of the masses of the population” (For more on the Leadership Code, see http://www.newzimbabwe.com/news-1394-Code+How+Zanu+PF+broke+own+rules/news.aspx )
The Leadership Code was strict and idealistic and perhaps naïve, although one could not fault the nobility of its intentions. Soon however, probably because of its utopian character, it gave way to ambition and greed, indeed, to a reality that was inevitable. The Leadership Code was rapidly abandoned. No-one in Zanu PF talks about it anymore. The leaders went on an acquisition spree. In the stampede, a few got their hands burnt when unbridled greed led them to corrupt ways, exposed through what became known as the Willowgate Scandal. Now, they are all multiple farm-owners. They are all owners of capital, a point which we shall soon re-visit in trying to explain the forces influencing the Supreme Court judgment.
But still, even then, Zanu PF did not give up its socialist pretensions, at least not until the IMF/World Bank came in with the Economic Structural Adjustment Programme (ESAP) in the early 1990s. ESAP came with a package of social and economic reforms, centred on economic liberalisation, deregulation and cuts in social services.
Overall, it was during that period of socialist experimentation, when the Left was still influential, that the existing labour legislation was introduced.
Pro-Labour Legislation
Unsurprisingly, this legislation was decidedly pro-labour. The labour movement was closely wedded to the ruling party and the state. When the ZCTU was formed from an amalgamation of the more than 50 existing unions in February 1981, its leadership was drawn largely from Zanu PF cadres. The labours union and the party were partners. It wasn’t surprising in this environment that this culminated in labour legislation which was heavily tilted in favour of the employees. The ideological influences were clearly pro-labour and the infrastructure of power favoured the employee.
Even when the era of ESAP and company redundancies arrived in the nineties, labour legislation remained staunchly pro-labour. Still, however, labour protested the effects of ESAP and demanded more protection.
On the other hand, business complained bitterly at the stifling character of labour legislation. They said it was too cumbersome, too expensive and near-impossible to get rid of unwanted employees, even when they weren’t productive or when the company was struggling financially. It was argued that the burden of labour bankrupted businesses and that it dissuaded foreign investment. In short, labour legislation was regarded as anti-business. Nevertheless, Government resisted change, choosing, instead to pacify the increasingly disgruntled worker.
Still, however, labour was not satisfied. The unions felt that by embarking on ESAP and the austerity measures and economic liberalisation that came with that programme, the government had abandoned workers in favour of market-based reforms and business. This growing dissatisfaction culminated in the unions sponsoring the formation of a strong opposition movement, the MDC in 1999, challenging the ruling Zanu PF.
The MDC: All-in-One
But if the nucleus of the MDC was the unions, it was also a hotchpotch of several, potentially colliding interests, all however, united by the one objective of removing Mugabe and Zanu PF from power. Therefore, owners of capital and the labour unions stood shoulder to shoulder, in an unlikely and uneasy coalition. There were trade unions, professors, students, business executives, gardeners, farmers and their employees, as well as the unemployed. Students who had fought with their professors, gardeners who were in an uneasy relationship with their bosses, senior executives and junior clerks who fought over labour issues – they all found themselves singing the same tune – “Mugabe Must Go!”
One might have assumed that given that it was built around unions, the MDC would be decidedly left-leaning. But the reality was more complicated. When Munyaradzi Gwisai, one of the more left-leaning members backed Zanu PF’s acquisition of land from white commercial farmers, he soon found himself out in the cold, expelled from the MDC. On his departure Gwisai charged that the workers’ party had been hijacked by the bosses; that the labour-backed party had been captured by capital. Still however, the MDC described itself as “pro-poor”.
Actually, in that period, ideological issues were conveniently put aside because they did not seem to matter. People don’t eat ideology, it was often said. For most of the political activists, the one and most important goal was to get rid of Mugabe and Zanu PF – everything else would be sorted out later. Tichazozviona kumberi ikoko, we shall deal with that later – that was the mentality. This attitude pushed the intellectuals to the periphery.
For most people, the departure of Mugabe was imminent, and these ideological issues were not important. There was, therefore, little investment in ideological issues. Unsurprisingly, there is no ideological school within the opposition movement. This is partly why people don’t see anything wrong with a senior leader of the opposition, which is supposedly pro-workers, at the same time representing employees in a court of law, in a case that leads to the decimation of workers’ rights. Or a senior opposition leader at the same time representing senior members of the ruling party. These situations are akin to the absurdity of an animal rights activist representing poachers in a court of law – it wouldn’t happen anywhere in the world, except perhaps in Zimbabwe. The lack of ideological firmness and fluency is astounding but it is tolerated.
Consequently, when people have spoken about “the Zimbabwe we want”, there has been very little, if any, critical interrogation of the important policy-oriented issues that would otherwise demonstrate that the lack of ideological fluency means there are actually many different versions of “the Zimbabwe we want”, not one. What emerges is that in a very simplistic fashion “the Zimbabwe we want” is a merely a euphemism for a Zimbabwe without Mugabe and Zanu PF.
Zanu PF & Property Rights
Meanwhile, in the post-2000 era, Zanu PF tried to recover lost ground but in doing so, it went for a primary institution of a neo-liberalism – property rights. The land reform programme was a mortal assault on the notion of property rights, part of the reason its conduct drew the ire of Western countries. In openly violating property rights, Zanu PF had dared to hit the nerve centre of the capitalist economy. Zanu PF complained that it had been stifled by the demand to stick to neo-liberal/market-based notion of “willing buyer/willing seller” which had been constitutionalised under the Lancaster House Constitution. The land reform programme was packages in the language of the old socialist-based school of thought – taking land from the capitalists and giving to the poor peasants.
It got worse when it was followed by the aggressive pursuit of the policy of indigenisation, when it demanded 51% share of foreign-owned businesses. It was another attack on the institution of property rights. When indigenisation appeared in the international media, it was presented as nationalisation. For many in the West, Mugabe the communist of the liberation war had re-emerged. Behind these labels however, lay a group that was actively engaged in aggressive acquisition of private property, all in the name of the people. Which is why some people argue that Zanu PF has always pursued capitalist policies, despite the Leftist pretentions.
The Supreme Court Judgment
What the recent judgment of Supreme Court has done, however, is to re-open this debate about the ideological orientation of the major political players. The judgment backed the right of employers to terminate employment on notice, dispensing with the traditional requirement to establish good cause before ending employment. It signalled a fundamental shift in power from the employee to the employer, ensuring that where it is was harder and expensive to terminate employment, now it is easier, quicker and cheaper.
There is no doubt that the judgment is pro-business. It gives immense power to business in the employment relationship. Ideologically, it is based on the fundamentals of the free-market. It rests on the assumption that the employer and employee are equal and can negotiate terms on an equal basis. The employee has no need for protection by the state. Indeed, backers of the judgment insist that if the employee has a set of rights, the same must apply to the employer as well. It is a free-market. The judgment represents symbolises economics of the free-market, a direct contrast to the ethos embedded in the labour legislation.
Looking at the broader picture, the judgment can be read to represent a major shift from the left-leaning labour policies of the eighties to that of neo-liberalism founded on market-based economics. The irony of it all is that if the labour legislation was disproportionately pro-labour, the judgment is disproportionately pro-capital. While previous cases had made a similar point, it was not until this case that the point had been made so emphatically, making clear-cut distinctions between termination on notice regardless of fault and other forms of terminating employment. It has given comfort to businesses to lay-off staff by way of termination on notice, without taking the route of retrenchments. Indeed, within hours of the judgment being made, companies were already issuing standard letters sacking employees by placing them on notice.
But why has this shift happened? To this, we must look at the changing political economy of Zimbabwe, and there, we might understand better what is happening.
Changing Patterns of Ownership
Part of the explanation probably lies in the shifts in ownership of the means of production, with the game-changer being the land reform programme and attendant changes in ownership of the means of production. The key political actors are now the owners of capital. They are now the employers and with this new station, their mentality has also changed. Frantz Fanon in his seminal book The Wretched of the Earth, particularly the chapter on The Pitfalls of National Consciousness had already forewarned us about this phenomenon, which arises as soon as the liberators step into the shoes of the former colonisers.
All the key actors in the Executive, Parliament and the Judiciary have become owners of the means of production – owners of capital. They are all farm-owners or business owners, with workers protected by strict labour legislation. Compared to the eighties, when they were largely members of the working class, they now see things from the perspective of the employer. This is not to suggest that the judges’ thinking was influenced by their newly-found status as part of the landed class and therefore as owners of capital and employers, but it is not inconceivable.
It is interesting to note that in a discussion on social media, a senior Zanu PF politician and Minister of Government praised the judgment. In Prof Moyo’s view, the judgment was “rational, progressive and timely” given the state of Zimbabwe’s economy. “There’s nothing neo-liberal about it”, he wrote on Twitter, in defence of the judgment. In his view, judges now understood the dynamics between labour and capital and hinting at a possible explanation for the judges’ pro-business approach Moyo reminded us that the “land reform [programme] had created new employers”.
Elsewhere, as reported by The Herald, another senior Zanu PF Minister and Politburo member, Savior Kasukuwere, was also applauding the judgment. “The judgment by the Supreme Court that allows people to be fired in three months is actually good,” he told a meeting of local authority bosses in Nyanga. However, showing the ideological confusion, the Labour Minister, Prisca Mupfumira, who is their colleague was making a different call in Harare, noting the dangers of the judgment and saying Government needed to move in quickly to plug the loophole.
In this regard, it is important to note also that Parliament itself, to which the workers’ movement might look for a solution, is also populated by the landed class and therefore owners of capital and employers. For that reason, it might also prove to be a dead end.
It is also for this reason that we are likely to see a revival of the institution of private property in respect of agricultural land. The Government has struggled with the issue for years, unsure of what to do in this area – to give or not to give property rights. They are hesitant to confer property rights, fearing that owners will end up selling the land back to the white farmers but also careful not to lose control of the population which is presently on the land. If they have ownership rights, they become independent. But the landed class is also desirous of gaining firm property rights and this might happen sooner rather than later, in the same way that there has been a sharp turn in labour laws.
Labour’s demise
In the past, a judgment of this nature might have been met with serious protests and disruption in the economy. There was an era when labour was a key voice, but that was when industry was ticking. But one of the results of the economic collapse has been the decline of labour and the weakening of the unions. They not as powerful as they were before and labour is probably not regarded as a threat anymore. There was a time when a call for a strike or a stay-away by the ZCTU caused serious concern for the political classes, but this may be a thing of the past. The state probably does not fear labour anymore. Upsetting labour is no longer a big problem like before.
In addition, the decline of industry has thrown more workers onto the streets, joining the hordes of vendors. In this vending economy, the state is now more wary of vendors, than it is of labour. Its policies and actions towards vendors are more likely to cause them concern than their labour policies. So overall, this shift, represented by this judgment might also be a reflection of the fall of labour as a force to reckon with.
Reform Agenda
There is an argument that the Government has achieved through the Supreme Court what it has been trying to do without success for some years. The Government has long recognised that labour legislation is too stifling for business and it was necessary to create a channel for reform. Government itself has struggled with a wage bill which consumes more than 70 per cent of its revenues. But for a Government that still wants to be seen as pro-workers, this was a hard policy issue to pursue independently. Indeed, when Finance Minister Chinamasa announced that there would be no bonuses for civil servants this year, he was rebuked by the President who immediately decreed that bonuses would be paid. What the Supreme Court has done is to open an avenue for these reforms to labour laws – again setting it on a collision course with the President, which might respond with a Presidential decree. These contradictions reflect the ideological unsureness, even within the ruling party.
The Government will probably move to say they are protecting workers in the wake of this judgment but in the process, there will, in reality, be a rationalisation of labour legislation. The country will almost certainly not go back to the labour regime of old but this will now be rationalised, with the aim of creating a balance between labour and capital. This judgment therefore might be seen as the agenda to reduce the costs of doing business and therefore promotion of the economic recovery efforts.
Chinese/IMF influence?
There is a further argument that the judgment is symbolic of the shift influenced by both the Chinese and the IMF. China has become a key influence on the Zimbabwean economy. Its economic success story is partly built on low labour costs. There is scant protection of workers’ rights, despite its communist background. Major companies prefer to house their manufacturing divisions in China because of lower costs of labour. Now, Vice President Emmerson Mnangagwa recently told us that the President’s office had engaged Chinese experts for economic advice, suggesting heavy influence on economic policy. On the other hand, the IMF has been pressuring Chinamasa for more economic reforms, and reduction of labour costs and liberalisation of the labour market is part of the agenda. This is not to say these influences played a part in shaping the mentality of the court, but the judgment has opened a gateway for promoting these policies.
Conclusions
Overall, the Supreme Court judgment represents an important moment in the evolution of the country’s labour policy. The Labour Act was tilted disproportionately in favour of employees. It was influenced by socialist ideology. But the economy never quite evolved into a socialist one. The Government spoke of socialism but were capitalists at heart and in practice. This is why rules like the Leadership Code never got off the ground. Hence there was always a conflict between business and labour, centred on labour legislation. For a long time, labour’s interests held sway, supported by a Government that was fearful of upsetting labour.
But over the years, the Zimbabwean economy has shifted. Not only has it contracted, reducing labour’s power and influence, but ownership of the means of production has also shifted. The key actors in the state have become part of the landed class. They are now the owners of the means of production. They are the owners of capital and employers. All these shifts in station shape their world view.
These shifts have been accompanied by shifts in the infrastructure of power. This is why the hiring and firing is now no longer seen as a matter of regulation by the state, but as a matter for the free-market – that of contractual relations between the employer and the employee. In this way, the Supreme Court has cut off the state from the labour market, leaving the employer at the mercy of the employer, although it is presented in neutral language, saying the employer and the employee are free to negotiate, and all this is based upon the fallacy of equality. The Supreme Court and probably Zimbabwe, as a whole, has never expressed itself in more neo-liberal terms.
What then, of “the Zimbabwe we want”? What exactly does it mean? It’s in cases like this, regarding labour policy, when interests within and outside parties collide, that you realise that actually, there is need for serious national dialogue. If ever we thought the old notions of class struggle were dead, then we were wrong. What we have is a multi-layered and complex crisis, in which struggle between parties has for too long obfuscated other struggles, which include class struggle. Thanks to the judgment, we are rudely reminded of that the task at hand is much harder and more complex than we imagined.
l like your analyses Doc, l am learning……