…as ill-advised labour ministry action judged to be illegal
The High Court has found that the government acted against the constitution when it cherry-picked parts of the labour law and supressed certain clauses. The Minister of Labour failed by authoring this disastrous legal debacle. The Attorney General failed as he did not protect the administration by stopping the doomed labour action. Together, they exposed the president. Geingob needs better advisors.
The Attorney-General, as the lawyer for the government, is supposed to do the legal research on proposed actions by the government. It is his task to go through the constitution, regulations, precedence, and similar cases in other countries and make a legal determination on the viability of what the government wants to do. What went wrong here?
Did the A-G advise against the proposals of the ministry of labour and was overruled? Did he docilely keep quiet in the face of opposition? Does he have what is needed to know the nuances of his work? Did all involved know that what they were doing was wrong, but did it anyway for other reasons?
Cabinet has no constitutional authority to make, remove, or change laws. This has come up in many other cases over many years where the government lost in the courts. No minister can suppress or invalidate clauses and sections of laws. This is clear, particularly after the ruling on the EVM case. A minister’s decision to set aside portions of a law was declared unconstitutional. How many times must the government be told to follow its own laws?
We are not unmindful of the sincere motivation for trying to halt mass retrenchments during a health state of emergency. No one wants tens of thousands more people thrown out of their jobs. Unemployment was already over 36 percent before the pandemic trampled the economy.
But, the cold, hard reality is that no entrepreneur goes into business simply to pay staff salaries. They go into business to make a product or deliver a service, get paid for it, and earn a profit.
The ministry of labour tried to bully investors and entrepreneurs into happily going bankrupt by cannibalising their liquidity and business assets to pay salaries to workers who were idle. This was never going to work and those advising the president should have known it.
We understand the conundrum facing the government during this state of emergency. Their work is not easy. The economy was already drowning. The pandemic came along and placed an anvil around its neck while it was flailing in the water.
The wheels of the economy are trying to start turning with the easing of some restrictions. It could be too little, too late. But, the massive private sector job losses to come will make things even worse. Couple that with the civil service jobs that must be eliminated to decrease the budget deficit and there is a perfect storm that could decimate many in Namibia.
Perhaps the illegal action of the government, won three months of income for people who would otherwise have lost their income long ago.
At the same time, government must stop being caught on the back foot. Decision-makers must stop reacting and be proactive.
We renew our earlier points from a March editorial where we predicted this outcome of the lawsuit. Get social workers, job banks, training programs (the NTA has millions in unspent training levies) and other programs in place. Sit down and talk to employers and employees about their fears and needs.
Police the retrenchments. Make certain people are getting what the law entitles them to and fast-track viable labour court cases. Make certain that retrenched workers get the first call for any new openings, with no loss of seniority.
Spank employers that need to cut salaries by 30 percent to remain in business and yet they cut salaries 50 percent.
There are legal ways to amend the constitution and regulations. Those ways must be followed. For emergencies, there are provisions for government to use existing law to manage it.
The Attorney General and the Minister of Labour must answer questions about their mistakes and then be judged accordingly. The people need their leaders to stand tall when things are so low. The president’s advisors must not drag him down.