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Maternal justice: A Zimbabwean crisis

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By Jimiel Kwenda

Maternity leave rights for female workers in formal employment ensure that women are not disadvantaged due to their child bearing duties thus placing them at an equal footing with their male counter parts.

But have these been observed in Zimbabwe? If yes, to what extent?

More questions are even hanging in the air when it comes to maternal rights in Zimbabwe and these include but not limited to:

Are maternity leave laws in Zimbabwe accommodative towards the needs of pregnant women in formal employment?

What is the current legal standing in relation to maternity leave rights for women in formal employment in Zimbabwe?

What changes are needed in the law to accommodate gaps in maternity laws in Zimbabwe?

In Zimbabwe the 2013 Constitution and the Labour Act are the main bodies of legislation that grant women in formal employment maternity rights. The 2013 Constitution of Zimbabwe in section 65(7) makes it mandatory for all female employees to have access to fully paid maternity leave for 3 months but the provisions of the Labour Act in section 18 are not in line with this.

Women who have been in formal employment for less than a year are not entitled to paid maternity leave. Also, the Labour Act has restrictions on the number of times a female employee can claim maternity leave under a single employer.

According to the International Labour Organisation, maternity leave covers the periods before, during and child birth. Its purpose is to safeguard the health of women and her child during potential period, in view of particular psychological demands associated with pregnancy and childbirth.

Hence maternity leave is essential to avoid discrimination of female employees on the basis of pregnancy.

In Zimbabwe, maternity leave rights are an area of contention in the sense that Labour Act contains provisions that are not in line with the Constitution of Zimbabwe as section 65(7)  of the constitution makes it mandatory for all female employees to have access to fully paid maternity leave for three months though the labour act has not been amended to be in sync with this.

These discrepancies in maternity leave laws in the Zimbabwean legal system need attention.

During the colonial era, the concept of maternity leave rights for women was non-existent.

The first piece of legislation to give women access to maternity leave was the Industrial Conciliation Act of 1981. This facilitated female employees with 85 days maternity leave though they were unpaid.

The Labour Relations Act of 1985 was instrumental in comprehensively prohibiting gender discrimination when it comes to employment though it ignored protection of women so that they could not be dismissed from work if they fell pregnant.

The Labour Amendment Act of 2002 was however the first to introduce fully paid maternity leave for women in Zimbabwe.

It had its restrictions though. This legislation did not cater for women who had served for less than a year.

In 2013 then came the Constitution of Zimbabwe which the new clause of Section 65 (7) stated that ‘Women employees have a right to fully paid maternity leave for a period of at least three months.’

This ensured the welfare of both the mother and the unborn child.

This was a positive step towards giving women equal opportunities at the work place and is also a measure that is in their best interest as child bearing duties will not be used as a means of discrimination them in employment circles.

Applicability of constitutional rights is however left in limbo as most draconic labour acts have not yet been aligned to the constitution.

Section 18 of the Labour Act is one vivid example how the constitution and existing legislation clash.

One of the clauses note that maternity leave can only be claimed once within a period of 24 months from the day any previous maternity leave was given. This is a restriction on how paid maternity leave is granted since any intention to access maternity leave before the 24 months period has surpassed will result in unpaid leave.

Another piece of legislation, the Public Service Regulations does not grant a woman extension to leave unless she agrees to use her accrued annual leave days without being paid.

Zimbabwe’s labour laws are therefore discriminatory towards women through provisions that limit maternity leave claims under a single employer. Unlike Zimbabwe, our good neighbour South Africa offers provision to women who suffer miscarriages while on maternity leave.

It is therefore essential that the existing legislation be aligned with the Constitution so that maternity benefits accrue to all female employees regardless of whether one has been in formal employment for a certain period or not.

Creation of an enabling statute that puts in place a social security scheme to cater for maternity leave benefits should also be put in place so as to encourage employers to hire women since the burden of shouldering maternity benefits will not be solely taken care by the employer.

Limit of women who can claim maternity leave under a single employer should also be scrapped in order to promote fair and just labour practices.

Zimbabwe in the process of liberating maternal legislation should also consider adopting international laws on maternity protection such as the Convention on Maternity Protection. The convention contains articles that relate to the issue of establishment of social security schemes to cover maternity costs for female workers.

Jimiel Kwenda is a para-legal who works with the government of Zimbabwe. He can be contacted on kwendajaym@gmail.com

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