By Daniel Zimba:
The High Court sitting as a Constitutional Court in Blantyre has concluded its hearing of an application to review the Employment Act of 2000 and the Pension Act of 2023 to accommodate the welfare of domestic workers in the country.
The court is yet to announce its ruling.
In the case, Eliza Steven and the Trustees of Domestic and Vulnerable Workers Association (Dovwa) challenge Section 27 (4) of the Employment Act of 2000 and Section 11 (1) of the Pensions Act of 2023, describing the two provisions as discriminatory against domestic workers in the country.
A panel of three High Court judges—Jack Nriva, Chimwemwe Kamowa and Allan Muhome—presided over the hearing, after which they reserved their ruling.
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“We will announce the day of the judgement, but before the Water holiday (April 6, 2026),” the judges indicate.
Section 27(4) of the Employment Act defines an employer as “any person, body corporate, undertaking or body of persons who or which has, in his employment, at least five employees”.
This definition, according to the applicants, exempts an employer who has less than five employees from certain obligations outlined under the Employment and Pensions Act.
Furthermore, Section 11 of the Pensions Act of 2023 grants the minister, in consultation with the Minister of Labour and the Registrar, the authority to exempt a class of employees from complying with Pensions Act requirements.
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Under this provision, domestic workers in Malawi are reportedly specifically exempted from benefitting from social protection under both the Employment and Pensions acts.
During the hearing, Steven Mponda, lawyer representing the applicants, argued that these sections of the law are discriminatory against domestic workers.
On that day, the panel of judges also heard from witness Dominic Samuel, the Executive Director of Dovwa, who said the current legal framework remains unfavourable for domestic workers to enjoy social protection at work to the maximum.
However, the defendants, the Attorney General, represented by Chrispin Kalusa, and the Registrar of Financial Institutions, represented by Zumbe Kumwenda, cross-examined the witness, arguing that the matter should not have come before the Constitutional Court in the first place.
The defendants also backed the relevance and fairness of the provisions (Employment Act and Pensions Act) in question in their arguments.
On the other hand, Vitumbiko Mbidzi, representing Women Lawyers Association, who are friends of the court in the case, contextualised the fate of domestic workers in Malawi and across the globe.
Mbidzi claimed that the sector of domestic workers is comprised predominantly of women who are less privileged financially, thereby stressing the importance of ensuring complete fairness from both sides in handling the case.
After the hearing, Mponda told The Daily Times that they were ready for the court’s judgement.
“Looking at the complexity of the matter and its constitutional nature, we are happy that the court has been very swift in handling this matter. Now we look forward to the court’s judgement,” he said.
In July 2024, Chief Justice Rizine Mzikamanda certified the case as constitutional, paving the way for the hearing by the constitutional court.
