The High Court of Malawi sitting as the Constitutional Court has concluded hearing the case where domestic workers want to have binding employment cont racts and pension entitlement just like other professions.
A three-judge panel of Jack N’riva, Chimwemwe Kamowa and Allan Muhome told parties to the case yesterday that the day for delivery of judgement will be communicated by April this year.
When the court convened yesterday in Blantyre, lawyers representing Eliza Steven
and the Registered Trustees of Domestic and Vulnerable Workers Association and those for the defendants, notably the
Attorney General and Registrar of Financial Institutions, submitted their oral arguments.
In their bid, the claimants
want the Constitutional Court to declare as unconstitutional Section 27 (4) of the Employment Act (2000) and Section 11 of the Pension Act (2023).
The Employment Act provision defines an employer as any person, body corporate, undertaking or body of persons who or which “has in his employment at least five employees”, a development that exempts employers with less than five employees from giving the workers written statement of particulars of employment.
| Mathews Kasanda
The claimants argue that this is discriminatory to domestic workers because a domestic worker employer may have less than the required five employees.
Section 11 of the Pension Act gives power to the minister to exempt employers with less than five employees from remitting pension.
“These two sections are unconst itutional. They are inconsistent with the Constitution of Malawi,” submitted lawyer Steven Mponda on behalf of the claimants.
He cited Section 20 of the Constitution which prohibits discrimination of persons in “any form”.
The claimants further argued that gratuity cannot substitute pension, because gratuity calculated at five percent of the earnings cannot substitute pension which is calculated at 15 percent to provide social security after
retirement.
But Chrispin Kalusa, a lawyer from the Attorney General’s Chambers, said the Employment Act provision is constitutional and applies to every person in every sector equally without discriminating against any group of people.
He said some limitations serve government objectives, highlighting that it would be ‘cumbersome’ if every empl oyer were to be tendering written statements of particulars of employment.
Registrar of Financial Institutions lawyer Andrew Zumbe Kumwenda also argued that Section 11 of the Pension Act does not discriminate against any one.
Chief Just i ce Rizine Mzikamanda certified the case as a constitutional case in July last year.
