CHAPTER THREE

• The Role of the State in Zambia’s Trade Union Movement
• The Impact of Section 20 (1)

CHAPTER THREE

The Role of the State in Zambia’s Trade Union Movement

The relationship between the state and the labour movement, particularly during the period 1969 to 1991, was one based on suspicious and therefore acrimony. Underlying the unsatisfactory industrial relations scene was the apparent conflict and rivalry, between the labour movement and the Government. This explained why, for example, all the strikes that took place between 1964 and 1991 were illegal in the sense that they were taken without exhausting the legal procedures. It has, however, been argued that it was not legally possible to have a legal strike during that time as the law did not, paradoxically, allow for such a situation to arise. In short, the procedures precedent to a strike were unrealistic. A policy of ‘strike first and talk later’ was the established norm.

It can be generally be said that Zambia experienced the largest number of strikes between the years 1964 and 1971. The highest number of strikes registered in one year was 1161 in 1969. This was attributed to wage demands and demands for better conditions of employment by workers in almost all sectors of the economy. [ Fn 1: See the Annual Report, Labour Department 1970]
However, these could also be attributed to unfulfilled post-independence promises.

After 1971 the number of strikes was comparatively on the decrease except for the dramatic change in 1980 and 1981 which registered 121 and 156 strikes respectively. This was partly due to the high cost of living with the labour movement calling for substantial wage increases and also partly due to the sharp differences between the labour movement and the government over the latter’s stand to introduce a decentralised system of local government which resulted in the expulsion of the ZCTU leadership from the ruling party (UNIP) [ Fn 2: See Times of Zambia 21 and 26 January 1981] .
This precipitated a series of strikes by some unions who demanded for the reinstatement of the expelled labour leaders.

The conflict between the Government and the Labour Movement worsened and adversely affected the industrial relations system in the country when the government detained the nucleus of the labour leadership [ Fn 3: See Times of Zambia 28 July 1981] which included the Chairman General of the ZCTU, Feredrick Chiluba. [ Fn 4: These were later set free when they contested their detentions in courts of Law. See Times of Zambia 29 October 1981, also 10 and 14 October 1981.]
The issue became so emotive particularly on the Copperbelt, the nerve-centre of the country’s industrial relations that, in an attempt to resolve the conflict with the miners, the Minister of Labour was physically manhandled by the irate miners. [ Fn 5: Times of Zambia 17 July 1981] In an early morning address to the nation one and half weeks later the President alleged that the wave of strikes that had engulfed the nation were instigated by the Labour Leaders for political objectives to take over from President Kaunda’s government. [ Fn 6: Times of Zambia 28 July 1981]
In fact, a day before the detentions were effected, a high ranking member of UNIP’s Central Committee and Secretary General of the Party Humphrey Mulemba challenged the Labour Leaders to declare their positions in the face of the strikes and a deteriorating industrial relations system on the country. It was later alleged in the High Court, when Feredrick Chiluba [ Fn 7: Times of Zambia 27 July 1981] challenged the detention in an application of harbeas corpus that he was detained because he had pledged to take over the Zambian government. [ Fn 8: Times of Zambia 18 September 1981]

The above reasons, although far from exclusive, would sufficiently account for a sudden increase in the number of strike between 1980-1981. This was a period of political sensitivity in the country particularly as the memories of an alleged coup d’etat attempt by Edward Shamwana and others were still fresh. [ Fn 9: In 1990 Edward Shamwana and other were arrested and charged with the offense of treason on the ground that they has conspired to take over the Zambian government by unlawful means. Those convicted, including Edward Shamwana, a prominent Lusaka Lawyer and State Counsel, were released through a generally amnesty in 1991 by former President Kaunda when he was under intense political squeeze.]
In addition, it is a period during which the inflation rate in relation to the increase in the index of consumer prices was growing while the growth rate of Gross Domestic Product (GDP) was low. Thus while inflation rate between 1980 and 1981 was 13.6 percent the GDP was 2.0 per cent during the same period. In such a situation the labour movement, which was united and formidable, naturally arose to the occasion.

The labour movement justified its wage demands in the eighties on inflation resulting in high prices for goods and services. In an attempt to control wage inflation the government had taken a number of measures including the imposition of wage ceilings [ Fn 10: Times of Zambia 16 April 1983] and by requiring that any wage increase must be approved by a competent government authority. [ Fn 11: Before 1983 this power was vested in the Industrial Relations Court. This was later transfered to the Prices and Incomes Commission. No such power exists today and the Prices and Incomes Commission has since been abolished.]
Government policy, however, on wage ceilings was that union should be free to bargain for higher wages [ Fn 12: Times of Zambia 3 May 1983] as long as (they) reflected the economic realities.

Indeed, the following comment which appeared in the Times of Zambia when the labour movement rejected a wage ceiling is interactive as it amply demonstrated the extent to which the relationship between the State and the labour movement had been strained. The editorial comment stated:

‘...........if some ZCTU leaders have ambitions for political power, they should come out in the open and follow the normal channels of achieving it, otherwise they should not blame anybody if their ambitions are nipped in the bud through their bunglings. [ Fn 13: Times of Zambia 15 August 1983.]

It is arguable, in fact, that the real matters rested on sheer political ambitions than on issues pertaining to free collective bargaining and the right to strike. It appeared then, that the apparent lack of a clear policy on prices and income rendered it almost impossible for the trade unions to negotiate for wages which, according to law, ought to have confronted with the governments declared policy on prices and income.

The failure on the part of the government to have a clear policy on prices and incomes at that time could be explained on two grounds.

First, by insisting that collective agreement should comply with the policy on prices and incomes ensured that those engaged in wage negotiations and conditions of employment exercised restraint in their demands to be consistent with the undefined policy. In other words it was hoped that wage demands would correspond with productivity.

Secondly, this may be explained in terms of the implication of having a prices and incomes policy in relation to the incidence of strikes. The State seemed to have the view that with a traditionally militant labour movement and in face of the ailing economy, the price which the government had to pay for accepting such a policy would have been its willingness to stand up to strike action. Therefore government did not seem prepared to have an incomes and prices policy with a threat of a strike hanging over it at the same time.

All that this boils to is that while a need was recognised to have an incomes and prices policy the government of the first and second Republics was reluctant to pronounce one for fear of its abuse through the instrument of industrial action. The removal of suspicious was therefore one major task confronting both the government and the labour movement. It is hardly surprising that the ZCTU maintained a special file on its conflict with the State.

Although the government had, since independence, used its detention powers to detain labour leaders, these were measures intended to discipline those involved or to restrict the right to strike. This, inspite of the ‘one union one industry’ philosophy, also had the effect of compromising and weakening the labour movement and its leadership. However, the government appears to have realised that taking direct action against the labour leaders had the effect of turning them into martyrs and also that restricting the right to strike merely on the basis of a broad definition of ‘essential services’ was an inadequate measure to effectively deal with the unions that went on strike.

Tactics changed in 1985 when the government targeted the trade unions other than individuals. As a reaction to the strikes that had occurred between December 1984 and February 1985 the Minister responsible for labour purporting to act under the authority of section 20 of the Industrial Relations Act, issued a directive in the form of a Statutory Instrument. Under this instrument the financial strength of unions whose members went on strike was at stake. This was the Statutory Instrument No. 6 of 1985 whose full title was ‘Trade Unions (Deduction of Subscriptions) Regulations, 1985. This provided as follows.’

‘Any deduction of subscription Order under section 20 of the Act shall be deemed revoked and shall become null and void from the day when a trade union of the benefit of which such order is made goes on illegal strike, whether official or unofficial.’

It must be pointed out here that the legality of a strike has nothing to do with whether or not the strike is official; whether the strike is legal depends upon the law and whether or not it is official depends upon the rules and policy of a union faced with such a strike action.

A strike may be illegal either because it has criminal objectives or it is conducted contrary to the laid down procedures of the law.

Section 20 of the Act on which the Minister relied is crucial in considering the governments reaction. This is more so because the ZCTU challenged this instrument in the Courts of law alleging that the Minister had no power or jurisdiction to revoke an order made pursuant to section 20 (1) and (2) of the Act. It is pertinent that these provisions are examined.

The Impact of Section 20 (1)

"The Minister may by statutory Instrument

a) Order an employer to deduct at the end of each month from the wages of those of his employee who are members of any trade union such subscription as are prescribed by the Constitution of the trade union of which of each of such employee is a member;

2) The Minister shall not make an order;

a) Under paragraph (a) of subscription (1), unless he is satisfied that the trade union to be named in the order is sufficient representative of the employees concerned as to justify the making of such an order …..

11) The Minister may at any time revoke an order under subsection (1) if he is satisfied that the conditions which justified the making of such an order no longer exist.

12) The Minister may make regulations to give effect to the provisions of this section and may, in particular prescribe anything which may be, or is required to be prescribed under this section.

The general rule under the Act was that trade Unions would collect their dues from their members by way of a check off system under section 19. This system is administratively inconvenient and expensive. Section 20 established the collection of such dues through a due shop system where the Minister was satisfied that the union for whose benefit a due shop order was to be made was sufficiently representative of the employee concerned or that the members of such union constituted at least sixty per cent of the total number of persons employed by a particular employer.

The Statutory Instrument, therefore, had the effect of revoking a due shop order made by the Minister whenever the members of such a trade union went on strike without following the laid down procedures. It did not matter for purposes of the instrument whether or not the strike in question was official. The effective question, therefore, is not whether the union rules were followed but whether the strike was legal. It has already been observed that although there were an apparent right to strike under this law the practical realities did not render the legal procedures to be tenable.

For purposes of this analysis, the following pertinent questions may be posted. First, what were the conditions precedent to the Minster’s exercise of the discretion to make a due shop order? Secondly, what conditions justified the revocation of such an order?

The case of John Daniel Sichone (and others as Trustee of the ZCTU) vs The Attorney General [ Fn 14: 1985/HN 227 unreported] was an important test case. By this case the ZCTU challenged the legality of Statutory Instrument No. 6 of 1985 in the High Court of Zambia. The ZCTU sought a Court ruling and a declaration that the instrument was void on the ground that the Minister of Labour, relying on the condition or event specified in the instrument, had no power or jurisdiction to revoke an order made pursuant to section 20(1) and (2) of the Act. In the alternative, the court was requested to determine the question whether the expression ‘condition of conditions’ under subsection 2(11) of section 20 included going on an illegal strike to attract the sanction of revoking a due shop order.

The ZCTU argued that matters specified in section 20(2) were exclusive and exhaustive conditions precedent and that going on an illegal strike was not one of such conditions and that its inclusion was extraneous and irrelevant and, therefore null and void.

On the other hand the Attorney General contended that the Minister did not only have the discretion under the subsection to revoke the order but also the discretion to vary or add to the terms of an order made under section 20(1) and that by issuing the Statutory Instrument the Minister was merely adding a condition. In the alternative, the Attorney General argued that in any case the Minister was empowered to make regulations to give effect to the provisions of the entire section.

The above argument raised very crucial legal issues to which the court should have given more serious consideration than it did. The court observed and held that:

‘…….. The conditions are clearly spelt out but these are the conditions under which the Minister may make an order and not the conditions under which he may revoke an order made by him ……. The conditions, therefore, which justify the making of an order are not spelt out in the Act’.

Quite clearly this decision by the court could not be supported in principle. The Act clearly stated that the Minister could issue a due shop order if the stated conditions were satisfied. By strong implication the minister was obliged to revoke such an order if those conditions ceased to exist. Going on strike was not one of such conditions at all.

This case alone demonstrated the rivalry that had existed between the state and the trade unions and, by extension, how the courts were politically manipulated by the state to the disadvantage of the labour movement. It also demonstrated the determination of the labour movement to fight the state through the Courts. More important and significant is the fact that as a united front the labour movement refused to be divided as a unified force.