The High Court sitting as the Constitutional Court in Blantyre yesterday dismissed an application by domestic workers who sought, among others, binding employment contracts and entitlement to pensions.
The case was brought before the court by Eliza Steven and a non-governmental organisation, Registered Trustees of the Domestic and Vulnerable Workers Association.
The claimants wanted the court to declare Section 27(4) of the Employment Act (2000) and Section 11 of the Pension Act (2023) unconstitutional.
Section 27(4) defines an employer as any person, body corporate, undertaking, or group of persons that “has in its employment at least five employees”.
Through their lawyers, Steve Mponda and Gibson Mtilatila, the claimants argued that this provision is discriminatory against domestic workers because a domestic worker’s employer may have fewer than the required five employees.
Section 11 of the Pension Act gives the minister the power to exempt any class or category of employers and employees from complying with the requirements of the mandatory occupational pension scheme.
The claimants submitted that the two statutory provisions violate their constitutional rights to non-discrimination, social protection and development and fair and safe labour practices.
The defendants, the Attorney General and the Registrar of Financial Services, argued that the exclusions created by these provisions are justified under Section 44 of the Constitution.
But a three-judge panel of Jack N’riva, Chimwemwe Kamowa, and Allan Muhome ruled that the provisions in question are constitutional as they do not violate the rights of domestic workers.
The court stated that the inclusion of domestic workers in the exemption order made pursuant to Section 11 of the Pension Act is constitutional and does not impinge upon their rights.
Meanwhile, one of the claimants’ lawyers, Steve Mponeda, said the legal team will analyse the judgement before consulting their client on the next possible course of action.
After the ruling, senior State advocate Chrispine Kalusa said the court’s decision reflects and aligns with the country’s prevailing economic situation.
Chief Justice Rizine Mzikamanda certified the case as a constitutional matter in July last year.
