Dr. Godfrey Hampwaya and Ors v The Council of the University of Zambia (2023/CCZ/0027) [2025] ZMCC 1 (13 February 2025)

• Jl IN THE CONSTITUTIONAL COURT OF ZA BIA RIPUtue Of LAMWJ~ AT THE CONSTITUTIONAL COURT REGI f~TITIJTIONAt COURT~ ZAMefA HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) jf [ I HEB 2025 J l_P REGISTRY 1 PO OOX 50087, LUSAKA IN THE MATTER OF: THE CONSTITUTION CHAPTER 1 OF THE LAWS OF ZAMBIA, (AMENDMENT) ACT NO. 2 OF 2016 IN THE MATTER OF: ARTICLE 187 AND 189 (1) AND (2) OF THE CONSTITUTION, CHAPTER 1 OF THE LAWS OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016 IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLE 189 (1) AND (2) OF THE CONSTITUTION CHAPTER 1 OF THE LAWS OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016 IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLE 187 OF THE CONSTITUTION CHAPTER 1 OF THE LAWS OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016 IN THE MATTER OF: LOCAL AUTHORITIES SUPERANNUATION FUND ACT CHAPTER 284 OF THE LAWS OF ZAMBIA AS AMENDED BY ACT NO. 8 OF 2015 IN THE MATTER OF: THE UNIVERSITY OF ZAMBIA FIRST IN FIRST OUT POLICY BETWEEN : DR. GODFREY HAMPWA YE MR. STEPHEN CHIPETA MR. VICTOR HAMAUNDU MUDAALA MR. HENRY MWELWA CHIMANA DR. ALEX MWAMBA NGOMA DR. SYLVESTER HATWAAMBO 1st PETITIONER 2nd PETITIONER 3rd PETITIONER 4th PETITIONER 5th PETITIONER 5th PETITIONER ' ( .. \ ( J2 DR. GERALD MBULAWABO CHISHIBA DR. FELICITAS NOSIKU MOYO MR. ALBERT KALUBA CHISHIBA DR. WESBY SILUPYA KALIKITI DR. CHOZI VINCENT LUNGU MR. KENNY MAKUNGU DR. AMOS BANDA DR. EUSTON KASONGO CHIPUTA DR. MELVIN SIMUCHIMBA AND 7th PETITIONER 8th PETITIONER 9th PETITIONER 10th PETITIONER 11 th PETITIONER 12th PETITIONER 13th PETITIONER 14th PETITIONER 15th PETITIONER THE COUNCIL OF THE UNIVERSITY OF ZAMBIA RESPONDENT Coram: Musaluke, Chisunka, Mulongoti, Mwandenga, Kawimbe, JJC held on 8th November, 2024 and 10th February, 2025 For the Petitioners: Mr. P. Songolo of Messrs Philsong and Partners For the Respondent: Ms. T. Nkhoma - In House Counsel, University of Zambia JUDGMENT Kawimbe, JC delivered the Judgment of the Court. Cases referred to: 1. Anderson Mwale and Others v Zambia Open University 2021/CCZ/001 2. Gilford Malenje v Zambia Airports Corporation Limited 2021/CCZ/005 3. Lubunda Ngala and Jason Chulu v Anti-Corruption Commission CCZ Selected Judgment No. 4 of 2018 4. Levy Mwale v Zambia National Broadcasting Corporation 2020/CCZ/0012 5. Owen Mayapi and 4 Others v Attorney General 2019/CCZ/003 6. Professor Luke Evuta Mumba and Dr. Tamala Tonga Kambikambi v Council of the University of Zambia 2022/CCZ/0012 I f f \ f J3 7. Lucas Hamaatowe and Others v Zambia Postal Services Corporation 2022/CCZ/0015 8. Hastings Mwila v Local Authorities Superannuation Fund 2023/CCZ/0013 Legislation referred to: The Constitution of Zambia Chapter 1 of the Laws of Zambia (Amendment) Act No. 2 of 2016 The Local Authorities Superannuation Fund Act, Chapter 284 of the Laws of Zambia as amended by Act No. 8 of 2015 The Pension Scheme Regulation Act, Chapter 255 of the Laws of Zambia The Pension Scheme Regulation (Amendment) Act No. 27 of 2005 [1.] Introduction [1.1] The petition under consideration was filed on 8th December, 2023 and alleges that the petitioners were employed by the respondent on diverse dates, and in different positions on permanent and pensionable basis. They subsequently retired from employment between the years 2012 and 2015. During the petitioners' employment and in accordance with their conditions of service, they all registered as members of the Zambia State Insurance Corporation (ZSIC) superannuation scheme and contributed to the ZSIC Fund. [1.2] In addition, the petitioners averred that they accrued other contractual benefits which emanated from their employment contracts with the respondent. Notwithstanding, their diligent service and timely contributions to the ZSIC pension scheme, the J4 petitioners alleged that neither their pension benefits after retirement, nor contractual benefits were paid by the respondent. [1.3] The petitioners further alleged that in defiance of the 2016 constitutional provisions entitling them to remain on the payroll on account of the respondent's non-payment of their pension benefits on the last day of employment, the respondent unconstitutionally removed them from the payroll and consequently exposed them to undue hardship. [1.4) Aggrieved by the state of affairs, the petitioners filed this petition seeking the following relief against the respondent: - (i) a declaration that the decision by the respondent to remove the petitioners with the exception of the 9th and 11 th petitioners off the payroll without paying the said petitioners' pension benefits is unconstitutional and contrary to the provisions of Article 189 (1) and (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; (ii) a declaration that the decision by the respondent to omit and or fail to pay the petitioners with the exception of the 9th and 11 th petitioners their accrued salaries and allowances arising from the respondent's failure to retain the said petitioners on the payroll after their retirement but post the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016 to date and counting is unconstitutional and offends the provisions I t I \ I JS of Article 189 (1) and (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; (iii) a declaration that the decision by the respondent to omit and or fail to pay the 9th petitioner his accrued salaries and allowances arising from the respondent's failure to retain the said petitioner on the payroll after his retirement but post the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016 to the date on which he was paid his pension benefits under the Superannuation Fund is unconstitutional and offends the provisions of Article 189 (1) and (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; (iv) a declaration that the decision by the respondent to omit and or fail to pay the 11 th petitioner his accrued salaries and allowances arising from the respondent's failure to retain the said enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016 and between the periods June 2017 to June 2021 when he was eventually placed back on the payroll is unconstitutional and offends the provisions of Article 189 (1) and (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016,· (v) a declaration that the first in first out policy and clause 2 (a) of the internal memorandum on pre-requisite for statutory retirement and retention of employees on the payroll dated 12th February 2019 are contrary to the supreme law of the land and in particular Articles 187 and 189 (1) and (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 and therefore null and I I I I I J6 void in so far as the petitioners remain removed from the payroll; (vi) an order that the petitioners with the exception of the 9th and 11 th petitioner be placed back on payroll and be paid their withheld salary arrears until such a time that they are paid their pension benefits under the Superannuation Fund in full; (vii) an order that the 11 th petitioner be paid his unpaid and withheld salaries post the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016, to date on which the 11 th petitioner was eventually paid his pension benefits in line with the provisions of Article 189 (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; (viii) an order that the respondent compensates the petitioners fully in the event that the respondent was not remitting funds to the Zambia State Insurance Corporation (ZSIC) Superannuation Fund as by law required; and (ix) a declaration that the payments referred to in paragraphs (v) and (vi) above constitutes a debt recoverable by action either in the Constitutional Court or in the Industrial Relations Court by the petitioners. [2] Petitioners' case [2.1] The petitioners' case 1s built on the various consolidated allegations presented in the petition. J7 [2.2] Overall, the petitioners claimed that they wrote letters to the respondent on 29th July, 2023 demanding payment of their pension benefits under the superannuation fund . That they received a response from the respondent on 6th September, 2023 alleging that it had settled their contractual gratuities. However, the petitioners contended that their claims were not honoured and the pension rights they sought to enforce were located under the LASF Act and since the respondent had failed to remit their contributions to the fund , it was to be held liable. [2.3] That except for the 9th and 11 th petitioners, the other petitioners were removed from the payroll by the respondent and it refused to pay them their accumulated salaries and allowances. Further, that in breach of the Constitution, the respondent intimated to the petitioners that their outstanding benefits would be paid intermittently and on the basis of its first in first out (FIFO) policy or list of those to be paid. [2.4] In the petitioners' view, the respondent's actions were unconstitutional because they breached the provision which entitled them to immediate payment of their pension and contractual benefits on retirement, or in the alternative, to be ' . J8 placed back on the payroll, while awaiting payment of terminal benefits. [2.5] In the further supporting affidavit filed in respect of their case, dated 8th July, 2024, the petitioners principally asserted that they were entitled to be retained or placed back on the payroll. That the omission caused them hardship because their hard-earned pension benefits were still outstanding contrary to the intention of Articles 187 and 189 of the 2016 Constitution which were enacted to prevent retirees from suffering hardship. [2.6] That their assertion was expressly supported by the rationale of Article 254 in the Report of the Technical Committee on Drafting the Constitution of Zambia (now provided as Article 189 (1) and (2) of the Constitution), that all retirees in the country were entitled to protection upon retirement to prevent them from suffering. [2. 7] The petitioners additionally averred that they had diligently contributed to the superannuation fund through the respondent, the scheme sponsor. That in the result, there was no excuse for the fund to pay their pension funds. That given the uncertainty on the payment of their pension benefits, it was only prudent for the respondent to reinstate the petitioners on the payroll. J9 [3] Respondent's case [3.1] The respondent filed an answer to the petition and an opposing affidavit on 11 th July, 2023. In the answer, the respondent conceded that the petitioners are its former employees and retired from the University between 2012 and 2015 prior to the enactment of the 2016 Constitution. However, the respondent contended that the law at the material time of the petitioners' retirement did not require it to retain them on the payroll. Hence, the petitioners' contention that the 2016 Constitution applied retrospectively to their case had no basis. [3.2] The respondent, furthermore, averred that the pensioners failed to prove that their pension claims were supported by pension law. Instead, that, the petitioners' entitlements were stipulated in the terms and conditions of service of the University of Zambia Lecturers and Researchers Union (UNZALARU) and the University of Zambia Professional Staff Union (UNZAPROSU), of which they were members. That the stated terms and conditions of service provided three (3) types of benefits payable to employees as follows: a) Statutory pension in accordance with the National Pension Scheme Authority (NAPSA); b) Superannuation benefits managed by ZSIC; and .. JlO c) In-house employee's contract of service. terminal benefits determined by an [3.3] In that regard , the respondent was only responsible for the payment of benefits under clause (c) above, while the benefits under clause (a) and (b) above were managed by 3rd parties. That while the NAPSA benefit under clause (a) above is established by law, those under clauses (b) and (c) above were embedded in the petitioners' contracts of employment. [3.4] It was further averred that the UNZALARU and UNZAPROSU conditions of service provided for the payment of superannuation benefits by ZSIC, as a superannuation fund operating under the Pension Scheme Regulation Act, Chapter 255 of the Laws of Zambia (PSRA). That the superannuation benefits payable thereunder were, however, not provided for by any pension law but rather the employees (including the petitioners) conditions of service. [3.5] The respondent also averred that the respondent and ZSIC as fund manager executed a Trust Deed and Scheme Rules. That the petitioners were not entitled to be retained on the payroll because they were not covered by section 5 of the LASF Act but rather the ZSIC fund established pursuant to the PSRA Jll which merely establishes the formation and management of pension schemes in the country. That as such, members of the ZSIC pension scheme such as the petitioners were only supposed to be paid benefits under the conditions set out in the Scheme Rules and Trust Deed. [3.6] The respondent additionally averred that consequently, the petitioners were not entitled to relief under Article 189 of the Constitution . Further, that under the ZSIC Scheme Rules a claimant is only entitled to 50 percent lumpsum of savings and thereafter, a monthly annuity until their death. That anything paid under Article 189 of the Constitution as full payment on one's last working day as contended by the petitioners would amount to unjust enrichment because the ZSIC superannuation benefits were not envisaged in the Constitutional provisions. [3. 7] It was the respondent's further assertion that the petitioners were rightfully removed from the payroll and there was no breach of Article 189 (1) and (2) of the Constitution. In addition, that the respondent's FIFO policy did not abrogate the Constitution but merely provided an equitable system for the payment of benefits based on the principle that the earliest employee who accrued benefit would be paid first. That the I I J12 measure had been adopted in order to dismantle the respondent's contractual payments to its employees, which were in arrears. By and large, the respondent insisted that the petitioners had no claim against it, neither had they raised any constitutional issue upon which the Court would engage its jurisdiction. [3.8] The respondent's opposing affidavit was deposed to by Ms. Theresa Chipulu Chalwe, its Registrar. She repeated the contents of the answer in toto. [4] Petitioners' response [4.1] The petitioners filed a replying affidavit on 17th July, 2024 essentially reiterating their position in the earlier affidavits. The departure was that the ZSIC superannuation fund confirmed that the respondent had not been remitting members contributions to the scheme, thereby denying the petitioners access to their pension benefits. The petitioners asserted that the Trust Fund was created under pension law, namely the PSRA and the LASF Act as amended. Hence, their claims had substance and demonstrated the respondent's contravention of the 2016 Constitution. J13 (4.2] It was also averred that the respondent being cognisant of its indebtedness to the fund , had begun the process of engaging key stakeholders to resolve the petitioners' claims. That while the petitioners had no issue with the respondent's FIFO policy, they would only accept it if they were placed back on the payroll. Anything short of that would amount to a breach of Article 189 of the Constitution, which had given them a cause of action against the respondent. [5] Petitioners' skeleton arguments (5.1] Counsel for the petitioners filed skeleton arguments on 8th December, 2023 together with the petition. He articulated two primary facets in support of the petitioners' case. Firstly, that the respondent unconstitutionally removed the petitioners from the payroll without paying them their pension benefits under the LASF Act. Secondly, that the petitioners were entitled to accumulated salaries and allowances, pension and or other contractual benefits, which the respondent had failed to pay. Counsel averred that the result of the respondent's actions amounted to constitutional breach , and were null and void . [5.2] In justifying the petitioners' case, counsel submitted that Article 189 (1) and (2) of the Constitution mandates employers to pay .. J14 out pension benefits promptly or to retain them on the payroll until such a time when pension benefits are paid. Thus, on their last working day, the petitioners were entitled to full payment of their benefits under the LASF Act. [5.3) Counsel fortified his submission by citing the case of Anderson Mwale and Others v Zambia Open University1 where the Court stated that: - The pension benefit envisaged under Article 187, 189 and 266 of the Constitution is one granted under or by a relevant pension law or other law applicable to an employee's condition of service. Hence, it follows that for an employee to be retained on the employer's payroll under Article 189 (2) of the Constitution, the pension benefit paid to an employee on the last working day ought to be a pension benefit granted by a pension law or any other law. [5.4) He also cited the case of Gilford Malenje v Zambia Airports Corporation Limited2 where the Court stated that: It was incumbent upon the petitioner to provide evidence that the gratuity in issue was a pension benefit granted to him under a relevant provision of the law. [5.5) Counsel next submitted that the law applicable to the petitioners' case was the LASF Act as amended in 2015. He then sought to demonstrate the significance of Article 189 of the Constitution vis the petitioners' case, by citing and relying on a number of authorities namely: JlS i) Lubunda Ngala and Jason Chulu v Anti-Corruption Commission3 - that the word "promptly" used in Article 189 (1) of the Constitution means that the benefit must be paid without delay, while "regularly" entails that it must be paid to the beneficiaries when due and not intermittently. ii) Levy Mwale v Zambia National Broadcasting Corporation4 - that Article 189 of the Constitution is clear on the requirement to pay an employee a pension benefit on the last working day. If not, retain the employee on the payroll until payment of the pension benefit. iii) Owen Mayapi and 4 Others v Attorney General5 - that the phrase "retained on payroll" means that such retirees will continue to be paid what they were getting through the payroll at the time of their retirement. The rationale is based on the need to maintain the status quo of a retiree who, for no fault of their own has not accessed their pension benefit. [5.6] On the strength of those cases, counsel submitted that the respondent ought to have continued paying the petitioners' J16 salaries and allowances through the payroll despite their retirement. Further, that their retention on the payroll was mandatory in the context of Article 189 of the Constitution, because the provision had been enacted to cushion the hardship that employees faced on retirement. [5. 7] Counsel additionally submitted that the petitioners' unpaid salaries were to be treated as accumulated salaries and to be paid with interest. For the assertion , counsel cited the case of Professor Luke Evuta Mumba and Dr. Tamala Tonga Kambikambi v Council of the University of Zambia6 , where the 2nd petitioner whose salaries had not been paid was and had been removed from the payroll on her last day of employment, was awarded pension benefits and accumulated salaries with interest accrued under the LASF Act as amended. The Court ordered that: We order the respondent to pay the 2nd petitioner her salaries for the period her pension benefits remained unpaid in full, based on the last salary that she received as a Lecturer under the 1998 permanent and pensionable contract. For avoidance of doubt, the 2nd petitioner should be paid salary arrears from the time she ought to have been retained on the payroll on 31 st January, 2019 and should continue to be retained on the payroll until her pension benefit is paid in full. The salaries due to the 2nd petitioner shall be paid together with interest at 6% from the date of filing of the petition up to judgment date and thereafter at the average lending rate as determined by the Bank of Zambia up to date of final payment. J17 [5.8] In drawing a parallel to the present case, counsel submitted that the petitioners were similarly circumstanced as the 2nd petitioner in the Professor Luke Evuta Mumba6 case, in that they had been remitting pension contributions but had not been paid as expected under the LASF Fund Act as amended by Act No. 8 of 2015. Accordingly, Article 187 of the Constitution was applicable to the petitioners' case. [5.9] Counsel submitted that the pension law applicable to the petitioners as retired UNZA employees is section 5 of the LASF Act as amended. He reproduced the provision as follows: 5. (1) Subject to subsection (2), a member shall retire on attaining the pensionable age. (2) A member may retire on attaining the age of - (a) fifty-five years if, twelve months before attaining that age, the member notifies the contributing employer of the member's intention to retire at that age and the employer approves the retirement; or (b) sixty-five years if, twelve months before attaining the pensionable the contributing employer of the member's intention to retire at the age of sixty-five years and the employer approves the retirement. the member notifies age, (3) A member who retires in accordance with subsection (1) or (2) shall be paid a retirement benefit. [5.1 O] Relying on the case of Professor Luke Evuta Mum ba6, counsel submitted that the LASF Act as amended in 2015, qualified as a pension law under Article 187 of the Constitution. • J18 That this position was settled by this Court and thus, members who contributed to the LASF such as the petitioners, were entitled to payment of their pension benefits under constitutional cover. (5.11] With regard to the 9th petitioner, counsel submitted on reliance of the Professor Luke Evuta Mumba6 case, that he was entitled to the payment of salary arrears with interest for a period of thirty-three (33) months amounting to ZMW 349,099.41 . That the benefit arose whilst awaiting payment of his pension benefits during the period January, 2016 to September, 2019. Further, that the claim had been calculated on the basis of his last drawn salary. [5.12] As for the 11 th petitioner, counsel submitted that he was entitled to payment of salary arrears for forty-eight (48) months with interest. That this was for the period between June, 2017 to June, 2021 when he was removed from the payroll. Counsel added that the claim was based on the petitioner's last drawn salary and the total amount due was ZMW 949,392. [5.13] Turning to the respondent's FIFO policy, counsel submitted and argued that it offended Article 187 and Article 189 ( 1) and (2) of I • I f J19 the Constitution. Counsel demonstrated its unconstitutionality by citing Article 1 of the Constitution that: The Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency. [5.14] Counsel next submitted that the respondent's FIFO policy made the petitioners who had been removed from the payroll to wait on it without any payments and this action was unconstitutional. In concluding, counsel reiterated the petitioners' prayer before Court. [6] Hearing [6.1] We heard this matter on 8th November, 2024. The petitioners' evidence was given by the 11 th petitioner (PW), in a representative capacity. In examination in chief, he relied on the petition, consolidated supporting affidavits, and the reply to the respondent's answer and skeleton arguments, as well as the petitioners' affidavit in opposition to the notice of motion and accompanying skeleton arguments. (6.2] In cross-examination , PW testified that he retired from UNZA on 28th November, 2015. Further, that the respondent contravened the 2016 Constitution when it failed to pay the petitioners' their ' . . J20 pension benefits. It was PW's evidence that the law supporting the petitioners' claims was the PSRA as amended in 2005. Additionally, that the respondent was not a member of the LASF. (6.3) When re-examined, PW testified that the PSRA was among the laws which the petitioners had cited in support of their case. (6.4) The respondent called two witnesses. The first respondent witness was Mr. Peter Sinkala (RW1 ), the Insurance Manager at the University of Zambia. On behalf of the respondent and in examination in chief, he relied on the answer to the petition supported by the opposing affidavit, a list of authorities and skeleton arguments in further support of the respondent's case. (6.5) In cross-examination , the witness conceded that the petitioners had all been employed on permanent and pensionable basis by the respondent. Further, that they had diligently contributed to the respondent's compulsory ZSIC superannuation scheme as shown in their payslips. They were therefore, entitled to receive their benefits. (6.6) It was RW1 's further evidence that after retirement, the respondent advised the petitioners to lodge their pension claims with ZSIC. That this was pursuant to the terms and conditions of service which provided the Zambia State Insurance Pension .. ' ' " J21 Trust Fund 2018, established under the PSRA as the fund manager. [6. 7] The witness testified that in spite of the arrangements, the petitioners pension benefits had not been paid out because the respondent had been facing liquidity challenges. That the respondent's failure was demonstrated in the letter from ZSIC to the petitioners that it had not been contributing to the fund. [6.8] The witness was not re-examined . [6.9] The second respondent witness was Mr. Myland Sitimela (RW2), Assistant Contributions and Benefits Manager at LASF. He testified that the LASF is a defined benefits statutory pension scheme created by an Act of Parliament, namely the LASF Act. [6.1 O] The witness also testified that the LASF Act inter alia, provides for the establishment of a superannuation fund for employees of local authorities and other public bodies, the powers and duties of the LASF Board, the payment of contributions to, and pensions from the Fund, and for matters incidental to and connected with the management and administration of the Fund. [6.11] It was RW2's further evidence that sections 2 and 13 of the LASF Act prescribe and limit the membership of the LASF to J22 local authorities, namely City, Municipal and Town Councils. That the Act extends membership to public bodies, which are recognised as Associated Authorities under the LASF Act; namely: - a) National Housing Authority; b) Lusaka Water Supply and Sanitation Company; c) Eastern Water Supply and Sanitation Company; d) ZESCO Limited; and e) The Local Authorities Superannuation Fund. [6.12] RW2 also testified that membership to the LASF was further limited to employees who joined the Fund before the operationalisation of the National Pension Scheme Act, No. 40 of 1996, on 1st February, 2000. That after the date, the LASF had not admitted new members. Further, that UNZA was neither a local authority nor an associated authority under the LASF Act. Hence, its employees who were not members of the LASF could not claim benefits under the LASF Act. [6.13] The witness went on to testify that LASF which, operates a defined benefits statutory scheme was not affiliated to private pension schemes, or registered under the Pensions and Insurance Authority. That private occupational pension o > I J23 schemes are those created under trust, through trust deeds and pension scheme rules pursuant to the PSRA. [6.14] RW2 next testified that LASF had no member relationship with UNZA and ZSIC. Additionally, that it had never received any employer or employee contributions from UNZA or on behalf of ZSIC. The witness then asserted that LASF was not managed by ZSIC or vice versa but by a Board established under section 5 of the LASF Act. [6.15) It was RW2's further testimony that the word superannuation simply means "pension". Additionally, that the use of the word "superannuation" in a fund or scheme name did not imply affiliation to the LASF. Rather it meant the creation of a fund to manage members resources in preparation for retirement. [6.16] In cross-examination , the witness reiterated that UNZA is not a member of the LASF and that the fund was not responsible for managing the UNZA Scheme. He also maintained that private pension schemes were created and regulated under the PSRA. [6.17] There was no re-examination . [7] Parties submissions J24 Petitioner's final submissions [7 .1] Counsel for the petitioners filed final submissions on 22nd November, 2024. They largely reiterated the evidence on record and the various arguments in support of the petitioners case. By way of laying emphasis, counsel urged the Court to adopt a purposive approach in determining the petitioners' case, as opposed to the literal one, notwithstanding that the petitioners claims arose before the enactment of the 2016 Constitution. [7.2] He further submitted that among the laws applicable to the petitioner's case was the PSRA even though it was not expressly cited in the heading of their petition, but in their affidavit in reply. Counsel added that the LASF Act as amended in 2015 and the 2016 Constitution incrementally applied to the law enabling the petitioners claims. [7.3] Counsel went on to argue that the real question before Court was whether Articles 187 and 189 of the Constitution applied to the petitioners' case given that the rationale of Article 189 of the Constitution sought to cushion retirees against suffering hardship at the time of its enactment and those that would retire later. Hence, what the Court was being called to do was to set a landmark decision which would reinforce the principles of J2S constitutional interpretation contained in Article 267 of the Constitution, that is, to promote its purpose, values and principles, while permitting the development of the law and contributing to good governance. [7 .4] Counsel next submitted that the law applicable on pensions to the petitioners' case was the PSRA. That even if the Act was not cited, the petitioners Affidavit in reply and evidence in Court was sufficient. [7.5] Counsel concluded by arguing that the petitioners had presented a strong case which entitled them to the relief sought. Respondent's final submissions [7.6] Counsel for the respondent filed final submissions into Court on 11 th December, 2024. Apart from the respondent's evidence, and the arguments already on record, counsel emphasised that the pension law relied on by the petitioners, namely, the PSRA was not a pension law. Instead, that the Act simply supervises pension schemes in Zambia, according to its short title as follows: An Act to provide for the prudential regulation and supervision of pension schemes; to provide for the appointment of the Registrar of the Pensions and Insurance; to provide for the Registrar's power and functions; and to provide for matters connected with or incidental to the foregoing. ' ' • • J26 [7.7] Flowing from the title, counsel contended that the PSRA is the regulatory and supervisory Act for pension schemes and does not provide for pension benefits. Placing reliance on the cases of Professor Luke Evuta Mumba6 and Anderson Mwale1 counsel contended that the petitioners were not entitled to be retained on the payroll or to salary arrears when they were removed from it because their conditions of service were not provided for in any Act of Parliament. [7.8] In that regard , counsel urged the Court to disregard the petitioners claims which were due from ZSIC a 3rd party fund, and whose operations were outside the respondent's control. [8] Consideration and determination [8.1] We have considered the petition, the parties' affidavits, and oral evidence, the plethora of written arguments in support and against the issues raised by the respective parties. [8.2] Pursuant to Article 128 (1) of the Constitution, this Court is vested with jurisdiction to adjudicate constitutional matters as follows: 128. (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear - (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution; J27 (c) a matter relating to the President, Vice President or an election of the President; (d) appeals relating to election of Members of Parliament and councillors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. [8.3] In addition, Article 128 (3) of the Constitution provides that: - 128. (3) Subject to Article 28, a person who alleges that - (a) an act of Parliament or Statutory Instrument; (b) an action measure or decision taken under any law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress . [8.4] In other words, the Court has exclusive jurisdiction in adjudicating matters involving constitutional interpretation or contravention, save for those provided for by Article 28, of the Constitution. [8.5] Turning to the substance of the matter before Court, we distill that the following issues are for determination, namely: - i) Whether the petitioners' pension rights are covered by the Constitution and the LASF Act; ii) If the answer to (i) above is in the affirmative, the ancillary issue is whether the respondent contravened the Constitution by removing the petitioners from its payroll and before the payment of their pension benefits? If that be the case, the J28 further issue is, whether the petitioners ought to be reinstated on the respondent's payroll; iii) Whether the respondent by failing to pay the petitioners' (except 9th and 11 th ) their accrued salaries and allowances after they were removed from the payroll amounted to constitutional breach; iv) Whether the respondent by failing to pay the 9th petitioner his accrued salaries and allowances post 2016 to the date that his ZSIC pension benefits were paid breached the Constitution; v) Whether the respondent acted unconstitutionally by removing the 11 th petitioner from its payroll between June, 2017 to July, 2021 and not paying his accrued salaries and allowances; vi) Whether the respondent by not remitting funds to the ZSIC Superannuation Scheme, and thereby denying the petitioners access to their pension benefits breached the Constitution; vii) Whether the respondent owes the petitioners contractual gratuity; and I ' ' j ' J29 viii) Whether the respondent's FIFO policy is unconstitutional? [8.6] With the issues thus framed, the law relevant to this dispute starts with Article 189 ( 1) and (2) of the Constitution which provides that: 189. (1) A pension benefit shall be paid promptly and regularly. (2) Where a pension benefit is not paid on a person's last working day, that person shall stop work but the person's name shall be retained on the payroll, until payment of the pension benefit based on the last salary received by that person while on the payroll. [8. 7] A pension benefit is defined in Article 266 of the Constitution, as follows: Pension benefit' includes a pension, compensation, gratuity or similar allowance in respect of a person's service. [8.8] In support of their case as presented in the extensive documents filed before Court, the petitioners relied on the LASF Act as the law enabling their claims although PW in his evidence sought to avoid the law preferring to rely on the PSRA of 1996 as amended in 2005. We shall deal with the issue later on in the Judgment. [8.9] Be that as it may, in the context of the facts and documentary evidence as presented by the petitioners, it is indisputable that they retired between the years 2012 and 2015 before the 2016 amendment to the Constitution. What we are being called to I ' . . , J30 determine by the petitioners is whether they accrued vested pension rights or benefits, which are enforceable under the 2016 constitutional order. In other words, would there be any opportunity for the petitioners to claim pension rights under a law that was not in existence at the time that their pension claims allegedly arose? The resolution of these questions touches on the issues identified in (i) and (ii) in paragraph 8.5. [8.1 OJ In the case of Lucas Hamaatowe and Others v Zambia Postal Services Corporation7 , whose facts are similar to the ones in the present case, to the extent that the petitioners therein were retrenched before the 2016 constitutional amendment but sought to rely on Article 189 (2) of the Constitution, we held that: It is trite that the law does not operate retrospectively unless there is a specific provision providing for the retrospective effect of the law and there is abundant case law on this principle in this jurisdiction. In the case of Benjamin Mwelwa v The Attorney General, 2020/CCZ/007 we reiterated that for the statutory or constitutional provisions to have retrospective effect, the wording of the retrospective effect must be clear. A perusal of the Constitution and indeed a plain reading of the said Article 189 (2) reveals that the clause does not provide for retrospective application. The petitioners cannot therefore, seek to enforce their rights under Article 189 (2) of the Constitution, which was not in existence at the time of their retrenchment. This provision in the Constitution cannot apply to the petitioners' situation as doing so would amount to applying the law retrospectively when it is not provided for such application. [8.11] Article 187 of the Constitution provides as follows: - J31 187. (1) An employee, including a public officer and Constitutional office holder, has a right to a pension benefit. (2) A pension benefit shall not be withheld or altered to that employee's disadvantage. (3) The law to be applied with respect to a pension benefit- (a) before the commencement of this Constitution, shall be the law that was in force immediately before the date on which the pension benefit was granted or the law in force at a later date that is not less favourable to that employee; and (b) after the commencement of this Constitution, shall be the law in force on the date on which the pension benefit was granted or the law in force at a later date that is not less favourable to the employee. (8.12] In giving substance and context to Articles 187 and Article 189 of the Constitution, we stated in the case of Anderson Mwale1 on pension benefits and the entitlement to be retained on the payroll that: It is evident from the plain language of Article 187 (3) of the Constitution that the framers of the Constitution intended that a pension benefit to which clauses (1) and (2) of Article 187 should apply is a pension benefit which was granted to an employee by or under an Act of Parliament ... We are fortified in our interpretation by pension benefit to which clauses (1) and (2) of Article 187 should apply is a pension benefit which was granted to an employee by an Act of Parliament .. . Given that the pension benefit referred to in Article 187, 188 and 189 of the Constitution is a pension benefit granted by or under a relevant pension law or other law. It follows that for an employee to be retained on the employer's payroll under Article 189 (2) of the Constitution, the pension benefit which is not paid to an employee on the last day of work should be a pension benefit granted by or under the relevant pension law or other law applicable to that employee's service. . I ( t • J32 [8.13] Accordingly, with regard to the enabling legislation and the regulations on accessing a pension fund , the law requires that a person must be a member of a fund . Thereafter such member must make consistent contributions, upon which a fund can provide pension benefits to that member (beneficiary) at some point in the future (that is retirement). From the petitioners' evidence, their pension contributions were made to the Fund which they identified as LASF, created by an Act of Parliament, as amended. [8.14] Quoting relevant provisions of the LASF Act, the objective of the Fund as stated in the preamble is: An Act to make provision for the establishment of a Superannuation Fund for employees of local authorities and other public bodies; to provide for the vesting of such Fund in a Management Committee and for the powers and duties of such Committee; to provide for the payment of contributions to and pensions and gratuities from such Fund ; and to provide for matters incidental to and connected with the foregoing [8.15] Section 2 of the LASF Act, defines a local authority as: "Local authority" means - (a) City council; (b) A municipal council; (c) A township council; (d) A district council; (e) The Committee; (f) Any other authority or body of persons of Zambia which the Minister may, at the request of such authority or body and with the prior approval of the Committee, declare by statutory notice to be a local authority for the purposes of this Act. , J33 [8.16] Under section 13 of the LASF Act, the membership of LASF extends to - City, Municipal and Town Councils, and Associated Authorities under the LASF Act, namely: recognised a) National Housing Authority, b) Lusaka Water Supply and Sanitation Company, c) Eastern Water Supply and Sanitation Company, d) ZESCO Limited, and e) The Local Authorities Superannuation Fund. [8.17] On the evidence before us, we are not persuaded that either the respondent or the petitioners are or have ever been members of the LASF. [8.18] This leads us to the inevitable finding that the petitioners' payslips which were exhibited in the petitioners consolidated affidavits with reference to the word "superannuation" do not refer to LASF as advocated by the petitioners because superannuation simply means pension and can be attributed to any pension scheme or fund. What is clear to us though is that the petitioners were fully aware of the superannuation scheme they signed up for through their conditions of service and membership to the scheme through UNZALARU and UNZAPROSU being the ZSIC Scheme and certainly not the LASF one. Even their petition does not allude to the LASF I I • • I I I J34 scheme which they only attempted to irregularly include in their affidavit in reply instead of seeking leave to amend their petition. Thus, the claim for LASF benefits is clearly an afterthought. [8.19] Furthermore, we find that this is confirmed by recital (a) of the Amended Trust Deed constituting the Zambia State Insurance Pension Trust (2018) pursuant to section II of the PSRA specifically providing that: There is in existence a trust deed of the Zambia State Insurance Pension Trust Fund dated 12th December, 2012, establishing a multi-employer pension fund to administer defined benefits and contribution schemes on behalf of participating employers. [8.20] The evidence on record further shows that the respondent is the participating employer under the ZSIC Scheme and is regulated by the University of Zambia Pension Scheme Rules Amendment No. 1 of 14th June, 2005 which designate the PSRA as amended as the supreme law regulating and supervising the pension scheme fund. [8.21] For the sake of clarity, under the ZSIC scheme, the pension fund referred to is ZSIC, a position which is buttressed by the Rules of the University of Zambia Staff Pension Fund dated 12th July 1993 which , under the definitions clause refers to "Insurance Corporation" - "shall mean the Zambia State J t ( \ • I ' ,' I • J35 Insurance Corporation Limited whose head office is situated in Lusaka". [8.22] We also find that there are four other factors, which place ZSIC as the responsible superannuation scheme over the petitioners' pension benefits. The first which is stated under section 11 of PSRA as amended in clause 4 and the Scheme fund name in the Amended Trust Deed both defining the pension fund as follows: The pension fund name shall continue to be the Zambia State Insurance Pension Trust Fund or any such other name as its Trustees may from time to time determine. [8.23] From the evidence, the other factors are found in clause 9.3 of the ZSIC Superannuation Scheme which the respondent purchased from ZSIC. [8.24] Further, the ZSIC scheme, which does not fall under the LASF Act is a private scheme regulated under the PSRA as amended. The benefits thereunder accrue under the enabling law cited above for Trust Deeds and Pension Scheme Rules. Lastly, the fact that all the petitioners in their consolidated affidavits referred to pension claims lodged with ZSIC and not LASF, is testament to the fact that the responsible pension fund for their A ( \ • I ' ' .,j • J36 pension benefits is the ZSIC Superannuation Fund and not LASF. [8.25] In the circumstances, we find that the respondent and the petitioners are not and have never been members of the LASF. They are not entitled to pension benefits under the LASF Act. [8.26] It is also our further finding that at the time that the petitioners retired between 2010 and 2015, Article 189 of the Constitution as amended in 2016 was not in existence and does not have any retrospective application . [8.27] We therefore hold that the petitioners have failed to prove their claims to superannuation benefits under LASF and consequently, their claims under (i) and (ii) identified in paragraph 8.5 have no merit. [8.28] The direct result of our holding is that the petitioners are not entitled to be placed back or retained on the respondent's payroll. Consequently, the petitioners claims for payment of accrued salaries and allowances with interest post-retirement are equally unmeritorious. [8.29] Regarding the issues in (iii), (iv), (v), (vi) and (vii) in paragraph 8.5 of the judgment, the Court has previously stated in its ' . \ . I II. t • • 't" ) J37 jurisprudence that disputes founded in private law, such as employer-employee, do not fall under Constitutional cover. Therefore, we reiterate that this Court is not the right forum for ventilating such disputes and redress if any should be sought by the aggrieved persons before a Court of competent jurisdiction. Accordingly, we hold that issues identified above are not for this Court to hear and determine. [8.30] Turning to the 8th , 9th and 11 th petitioners' allegations that they were entitled to be maintained on the payroll because their pension benefits had not been paid after serving on contracts, our short response is that their claims are wrongly before this Court. The reasons are those stated in paragraphs 8.29 above that the claims of the respective petitioners do not raise any constitutional issues. [8.31] In any case, these petitioners like the others, were members of the ZSIC Superannuation Scheme, and not the LASF and their position is distinguishable from that of the 2nd petitioner in the Professor Luke Evuta Mumba case, who was entitled to benefits under LASF on account of the fact that she was a member of LASF. • ' ... J38 [8.32] Lastly on the issue raised in paragraph (viii ) identified in paragraph 8.5, on whether the respondent's FIFO policy is unconstitutional, our view is that such administrative policy on settlement of debts owed to employees does not raise any constitutional issues at all. [9] Final orders [9.1] The petition is dismissed for lack of merit. [9.2] The parties shall bear their own costs. Constitutional C , urt Judge M. K Chisunka ,,__ J. Z Mulongoti Constitutional Court Judge Constitutional Court Judge ·--~ M. Z Mwandenga ......... ~~w ..... . M. Mapani-Kawimbe Constitutional Court Ju e Constitutional Court Judge