On Retirement Age
Elijah Simbai wrote
Your Excellency, I have read the article, as well as yours, which I saw on Zambian Observer. I will make my observations on this article, and subsequently point out a few issues I see with the Supreme Court decision in Martin Nyambe and others v KCM PLC as compared or contrasted with the Sandras Samakayi v AG case by Concort.
It appears to me that Mr Wilfred Musape and Mr Mwalimu Patrick are working on a certain misapprehension on the Martin Nyambe case. To put it into context, the matter at issue in the Nyambe case was the application of SI 63 of 2014 to retirees.
The High Court held the view that it should apply retrospectively, while the Court of Appeal and Supreme Court held that it applies prospectively. SI 63 amended the Public Service Pensions Act, which is a law creating the Public Service Pensions Fund and the Regulations providing for retirement age and benefits for Public Service workers.
This is very sector specific, and the public service is not the only sector that is pensionable or whose pension practices are regulated, nor is the Public Service Pensions Act, and by extension, SI no. 63 of 2014, the only law(s) providing for pension in the Republic.
To be sure, there are other pension funds creating and regulating pension funds, schemes, benefits, and retirement conditions such as age and/or length of service. For example, we have the Local Authorities Superannuation Act, which creates the Local Authorities Superannuation Fund and Conditions of Retirement and benefits for Local Authority employees or council workers; we have the Defence (Regular Force) (Pensions) Regulations, Cap. 106 of the Laws of Zambia, which provides for the Conditions of Retirement and benefits for members of the Defence Force; we have the National Pensions Scheme Authority Act, which creates NAPSA and the conditions of retirement and benefits for private sector workers; and we have the Judges (Conditions of Service) Act, Cap. 277 of the laws of Zambia, which creates the conditions of retirement and benefits for judicial officers (who are simply judges and magistrates).
Since the judiciary comprises of judicial officers and public service workers (non judicial officers), it is therefore regulated by two different sets of pension laws. To be sure, SI no. 63 of 2014 specifically amended the PSPF Act, and the other pension laws were unaffected.
To be sure, Regulation 3 of the said SI no. 63, in fact, states categorically that it doesn’t apply to members of the Defence Force, which was our contention in the matter the Concort refused to hear to save Mr Marshall Muchende’s face.
It is unfortunate that this government, whether from a sincere ignorance of the law or downright arrogant disregard for the same, continues to force members of the Defence Force to be retired on the PSPF Act.
The correction that needs to be made, therefore, is that SI no. 63 is sector specific, and judges and private sector employees, among others, are not and should not be affected.
The question begs then: ‘why did the judiciary send a notice to judicial and non judicial officers alike communicating the age adjustments in retirement when the SI only affects a section of their workforce?’ The answer to this is that the notice sent out by the judiciary has two parts.
The first part is addressed to judicial officers (Judges and Magistrates), and the second part to public service workers or civil servants within the judiciary. The first part of that notice has nothing to do with SI no. 63 of 2014 or the Supreme Court decision, but the case of Samakayi v AG, which was decided by the Constitutional Court almost at the same time as the Supreme Court decision in the Nyambe case. In that case, Mr Samakayi, a Magistrate and judicial officer, had been retired at 55, but later on his retirement was revoked by the Judicial Service Commission because, under Article 143 of the 2016 amended Constitution, he was supposed to retire at 65 as a judicial Officer.
He asked Concort for interpretation, and, in interpreting the Constitution, Concort said he should have either retired at 55 or, if not, then 60 or 65, and not intermediary between these ages. Arising from this decision, the judiciary notified its judicial officers who had retired in between that they were to resume work appropriately.
But instead of writing the two separate notices arising from the two cases, it decided to combine the memo. The clarification, therefore, needs to be made appropriately that the decision does not affect everyone across the board. That said, I would like to point out the problems I see with these two decisions, which are many, but I’ll point out only 3 for now.
The first is the financial burden on the state. This is because the government now has to be ready to repatriate and pay retirement benefits and gratuities of public service workers who were envisaged to retire in the next 5 to 10 years.
This is compounded by the fact that according to Article 189 of the Constitution, unless the government pays them promptly, they will have to remain on the payroll until full payment and settlement of their benefits and gratuities, but they must stop working.
The second problem is that the current Constitution has split the public service into various groupings, which will further complicate the process of implementing this decision, especially the Supreme Court one. Whereas prior to the 2016 Constitution the public sector or ‘public servant’ was broad enough to include everyone employed in or by the government, the current Constitution created Judicial Service, Public Service, Civil Service, Teaching Service and the Defence Force, among others. In keeping with these creations, the Service Commissions Act was enacted in 2016 to give effect thereto, but comprehensive subsidiary legislation hasn’t yet come through to create comprehensive separate legal and operational framework to all those various services.
Does it then mean this decision is going to be applied across the board to the Teaching Service workers, Public Service workers, Civil Service Service workers, Local Government Service workers and all the other services as long as they are employed in the government, or they are going to start picking who are going to be beneficiaries?
If they apply it across the board, then the Samakayi case is useless because before 2016, judicial officers were also part of the public service in a sense. If they concurrently implement the Samakayi case also, on account of the fact that judicial officers were created as a separate service commission in 2016, then teachers and civil servants will also reject the Nyambe case because in 2016, they were also created into separate services away from the public service. This challenge has been created in part by the courts themselves, which brings me to the next problem I see.
The third problem is in the decisions themselves by the two highest courts. In overturning the decision of the High Court, the Supreme Court said the law, referring to SI no. 63, does not apply backwards.
Therefore, SI no. 63 can not apply to people who were employed before 2014. The Concort, on the other hand, has, in the case of Mutambo v Attorney General, for example, stated that the 2016 Constitution does not apply in retrospect, but it is forward-looking.
It seems like both courts agree on the substance of the principle, but they don’t agree on the application. According to the Supreme Court, SI no. 63 applies to employment before it was enacted. Meaning, only people who are employed after 2014 are worthy of its benefits.
Concort, however, with respect to retirement provisions in the Constitution, its position seems to be applying the principle on retirement, and not employment. According to Concort, everyone who retired before 2016 is not entitled to the benefits of those articles that provide for retirement, but everyone who retirees after 2016, it doesn’t matter when they were employed, is entitled to its benefits.
If the Supreme Court had applied the principle the same way Concort did and has done in almost 10 cases I can think of right now off the cuff, then it would have agreed with the high court in the Nyambe case and found in favour of the KCM workers. This view would have held that, irrespective of when you were employed, at the time of your retirement, SI no. 63 was the law in place. It is important to note two things here.
Firstly, that SI no. 63 is a retirement law, and not an employment law. It must, therefore, follow that, under it, we must be discussing retirement, not employment. The relevant questions should have been ‘when were you retired, and what was the law in place on retirement at the time?’, and not ‘when were you employed, and what was the retirement law in place on your retirement?’.
The second thing to note is that out of the 3 Supreme Court Judges who made the bench in the KCM workers case (Nyambe case), one agreed with this position and upheld the high court’s decision, while the two sided with the court of appeal, rendering it a majority decision, which may be argued to be a weak majority decision really. Maybe the two judges of the Supreme Court thought they were doing government a favour, but I think they made it a lot harder in practice.
On the other hand, if the application of the Constitution was adopted on the basis of the Supreme Court’s ruling, then the many cases which have caused heartaches for government and private sector employers would be overturned and reversed, saving a lot of resources on the part of government. It would then mean that Article 189, which provides that an employee due for retirement will be maintained on the payroll until payment of benefits in full, is only applicable to employees employed after 2016, and not necessarily retiring after 2016.
These are my brief thoughts. I know it’s a handful Your Excellency, and I apologise for being voluminous, but I hope you do manage to read through, though. I also hope that you could invite an expert on your forum to address these issues.
