Anderson Mwale, Buchisa Mwalongo and Kola Odubote v Zambia Open University (2021/CCZ/001) [2021] ZMCC 17 (20 September 2021)

IN THE CONSTITUTIONAL COURT FOR ZAMBIA HOLDEN AT LUSAKA (CONSTITUTIONAL J URISDICTION) 2021/CCZ / 001 IN THE MATTER OF: AND IN THE MATTER O F: BETWEEN: ANDERSON MWALE BUCHISA MWALONGO KOLA ODUBOTE AND ARTICLES 128, 187 AND 1 89 OF THE CONSTITUTION OF ZAMBIA ACT NO. 2 OF A DECISION OF THE ZAMBIAN OPEN UNIVERSITY TO REMOVE THE PETITIONERS STIT T ~ EF~OM I~ S PAYROLL 11:J r; StP 2021 7 E~ ~ ; ' =. t c:. REG;,_:y:- l p O ElOX 50067, LUf'A. VA J ( ----., 1 ST PETITIONER 2ND P ETITIONER 3RD P ETITIONER ZAMBIAN OPEN UNIVERSITY RESPONDENT Coram: Chibomba, PC, Sitali, Mulenga , Muna lula and Musaluke, JJC, on 16th March, 2021 a nd 20th September, 2021 For the Petitioners: Mr. B. Sitali o f Butler and Com pany Legal Practitioners For the Respondent: Ms. E. C. Chiyenge of Mbalashi C . a n d Associates JUDGEMENT Sitali JC, delivere d the Judgment of the Court. Jl Cases re ferre d to: 1. 2 . 3 . 4 . 5 . 6. Lubunda Ngala and J a son Chulu v Anti-Corruption Co mmission, Selecte d Judgment No. 4 o f 2018. Godfrey Malembeka (suing a s Executive Dire ctor of Prisons Care a nd Counselling Association) v Attorney Genera l a n d Anothe r (2017) 2 Z. R. 286 Att orney General v Chibaya and Others Suprem e Cour t Appeal No. 70 of 2011 Faustine Mwe nya Kabwe and Another v Mr. Justice Sakala , Mr. Peter Chitengi and Attorney-Gene ral SCZ/8/93/2009 Attorney General, The Movement for Multip arty Democracy v Akashambatwa Mbikusita Lewanika and Others SCZ Judgment No. 2 of2014 Director of Public Prose cutions v Ngandu and Others (1975) Z. R. 253 Legislation referred to: 1. 2 . 3. 4 . 5. The Constitution of Zambia, Chapter 1 of the La ws of Zambia. The Public Service Pensions Act, Chapter 260 of the Laws of Zambia. The National Pension Scheme Act, Chapter 2 56 of the Laws of Zambia. The Judges (Conditions of Service) Act, Cha pter 257 of the Laws of Zambia. The Interpretation and Gene ral Provisions Act, Ch apter 2 of the Laws of Zambia. BACKGROUND AND INTRODUCTION [1] The Petitioner s filed a petition against the Respondent on 12 th January, 202 1 seeking a declaration that the Respond ent's d ecision to remove the Petitioners from the payroll before paying them their gratuities as stated in the Respondent's letter of 28th Apr il, 2020 is unconstitution al; an order that the Petitioners be r etained on the payroll and be paid all the withheld salary arrears and allowances J 2 until such time that they shall be paid their pension benefits which are in the for m of gratuity; d a m ages; interest and costs. PETITIONERS ' CASE [2] Th e p etition was accompanied by an affidavit verifying facts sworn by the 1 st Petitioner , Anderson Mwale. The facts of the case as set out in the p etition and affidavit are that the 1 st Petitioner entered into a t h ree-year contract of employment as accountant with the Respondent from 1st April, 2013 to 30th March, 2016, which upon expiry was renewed for a further period of three years from 1 sL April, 2 016 but which was only s erved up to 31 st December, 2017. The 1st Petitioner was subsequently employed by the Respondent as its Bursar from 31 s t January, 2018 to 3 1st December, 20 19 when his contract of employment came to an en d and h aving r eached retirement age. [3] The 2nd Petitioner enter ed into a three year con tract of emp loyment with the Respondent from 1s t January, 20 11 to 3 1s t December, 2 013 which u pon expiry was renewed for a further period of three years from 1s t January, 20 14 to 3 1st D ecen1ber , 2 01 6. The 2 nd Petitioner was s ubsequently em ployed b y the Respondent as a J 3 Lecturer Grade II from 1st January, 2017 until he retired on 3 1st December, 2019 when his contra c t of employment came to an end and having reached retirement age. [4) The 3 rd Petitioner entered into a three-year contract of ◄ employment with the Respondent from 1 st April, 20 13 to 1 st March, 2 016 which upon exp iry was renewe d for a further p eriod of three years when the 3 rd Petitioner was employed by the Respond ent as a senior lecturer from 1 st April, 2016 to 1 st March, 2019 when his contract of employm ent came to an end a nd having r eached retirement age. [5] It was a condition of the Petitioner s ' contracts of employment that at the end of their respective contracts they would be paid gratuity calculated a t 29% of their terminal salary plus all allowances to which they were entitled during the p eriod of their employment. When the Petitioners' respective earlier contracts of employment ca1ne to an end, the Respondent p aid t h em their respective gratuitie s. However, when the Petitioners' last renewed con tracts came to an end on 31 st December, 2019, in the case of the 1 st a nd 2 nd Petition ers and on 1 st Ma rch, 2 01 9 , in the case of the 3 rd J 4 Petitioner, the Responden t did not pay them their respective gratuity and therefore retained them on the payroll. [6] By letter dated 28 th April, 2020 the Respondent informed the Petitioners that they had been removed from the payroll ostensibly because, according to this Court's d ecision in Lubun da Ngala and J ason Chulu v Anti-Corruption Commission(ll, the gratuity which had not yet been paid to them could not be considered a pension benefit so as to j u stify their continued retention on the payroll. [7] Despite making representations that they were entitled to be retained on the payroll until they were paid their gratuity, the Respondent r efused to restore the Petitioners to the payroll. The Petitioners contended that as result of the Respondent's refusal to p ay th em their respective gratuity, they had been subjected to hardship in their livelihood. The Petitioners further contended that the Respondent's ac tion violated Articles 187 and 189 of the Constitution as amended by the Constitution of Zambia (Amendment) Act No. 2 of 20 16 (henceforth r eferred to as the Constitution). JS RESPONDENT'S CASE [8] On 27th January, 2 02 1 the Respondent filed an Answer to t he p etition together with an affidavit in opposition sworn by Fredrick Ng'andu t he Registrar of the Responden t University. In its Answer and affidavit, t h e Res pondent a dmitted that it had employed t he Petitioners on fixed term contracts for various periods respectively and averred that the correct particulars pertaining to t h e contracts and periods were as follows : (a) That the 1 s t Petitioner was employed 1n the position of Accountant for a p eriod of three years from 1 st April, 2 013. On expiry, the contract was ren ewed for a further period of three years from 1 st April, 2 016. That the contract period was varied when t he 1 st Petitioner was appointed to the h igher position of Burs ar in which he served on a t wo-year contract with effect from 1 st January, 2017. Before the expiry of his last contract, t he 1 st Petitioner tendered his resignation by notice date d 22n d June, 20 18, but the Respondent turned down the resignation, maintaining that h e h a d only a few months before the expiry of the contract. (b) That the 2 n d Petitioner was employed as a Lecturer Gra de II in the School of Law on a three-year contract from 1 st J 6 January, 2011, which on expiry was ren ewed for a further period of three years from 1 sc January, 201 7, at the end of which the Respondent declined the 2 nd Petitioner's request to renew the contract. (c) That the 3 rd Petitioner was employed as a Senior Lecturer in the School of Agriculture on a three-year contract with effect from 4 th January, 2016. That prior to its expiry, the 3 rd Petitioner applied to ren ew the contract, and the Respondent offered him a two-year contract instead, which he turned down. [9] The Respondent averred that the Petitioners did not retire from its employ but that their services terminated upon expiry of their respective fixed term contracts. The Respondent further averred that it was not privy to any of the Petitioners' alleged retirement as they were not employed on permanent or pensionable conditions of s ervice . The Respondent contended that the conditions of service applicable to the Petitioners' service, other than those specifically stipulated in their respective letters of a ppointment or renewed contracts, were the Respondent's Revised Conditions of Service dated October, 2010. That clause 5 .0 (iv) of those conditions states that all appointments shall be on fixed contracts and no employee J 7 shall be engaged on permanent and pensionable basis. That accordingly, each of the Petitioners was employed on a fixed term contract, not conditioned on retirement or attainment of retirement age. [10) The Respondent stated that the rates of gratuity due to each Petitioner was as stated in the letter s of appointment or renewed contracts and that the correct dates of expiry of the 1 s t , 2 n d and 3rd Petitioners' contracts were 31st December, 20 18, 31 s t December, 2 019 and 3 rd January, 2019 , respectively. [11] The Respondent averred that the Petitioners' retention on the payroll was based on its mistal<:en belief that, in terms of Articles 187 and 189, as read with the definition of pension benefit in Article 266 of the Constitution, all gratuity and other terminal benefits payable to employees upon their contracts of service coming to an end were pension benefits entitling former employees to retention on the payroll until they are fully paid. [12] The Respondent averred that d uring the period that the Petitioners were retained on the payroll, the 1s t Petitioner, who was owed K290,204.16 in gratuity and K235,000.00 for other terminal J 8 benefits making a total of K525,204.16, was paid a total sum of K546,720.00 resulting in an excess payment of K245,546.80 according to the Respondent. [13] That the 2 nd Petitioner who was owed K185,184.72 in gratuity and K58,514.05 for other terminal benefits making a total of K243,698.77, was paid a total sum of K53,214.00 resulting in a credit balance due to him of Kl90,484 .77. [14] That the 3 rd Petitioner, who was owed K237,6 14.40 in gratuity and Kl0,000.00 for other terminal benefits making a total sum of K247,6 14.40, was paid a total sum of K310,290.00 resulting in an excess payment of K62,675.00 . (15) The Respondent averred that while it regretted its inability to pay the gratuity and other terminal benefits owed to the Petitioners immediately upon their contracts coming to an end, the 1 s t Petitioner and 3 rd Petitioner h ave not suffered hardship as alleged in their pet ition as they were overpaid during their retention on the payroll. With respect to the balance of the gratuity a nd other terminal benefits due to the 2 n d Petitioner, the Respondent averred J 9 that it was committed to paying the same as soon as its financial situation would permit. [16] The Respondent denied that it violated Articles 187 and 189 of the Constitution by removing the Petitioners from the payroll and a sserted that it maintained statutory contributions to the National Pension Scheme in respect of the 2 rid Petitioner and the 3 rd Petitioner while they were still eligib le for membership of the p ension scheme and wer e expect ed to r eceive their pension benefits from the scheme upon retirement in accordance with the Nationa l Pension Scheme Act, Chapter 256 of th e Laws of Zambia. Th at their dates of birth according to the NAPSA records are 12 t h May, 1960 and l Q Lh December, 1962 r e spectively, while that of the 1st Petitioner according to his curriculum vitae is 1st January, 1957. H e thus was above retirement age and not eligible for membership und er the national pension scheme even before h e was employed by the Respondent. [17) It was contended that the Respondent did not have permanent and pensionable conditions of service; a nd t h a t the Petitioners were employed on fixed term contracts with a provision for paymen t of Jl O end-of-contract gratuity at the rate of 29% of salary inclusive of allowances on the expiry of contract. That gratuity is not due by virtue of an employee having r eached retirement age or having retired under any law, but by virtue of a contract coming to an en d, whether by expiry of a fixed term, resignation, termination of contract on medical grounds or death. [18] The Respondent contended th at the said gratuity is not a pension benefit ·within the contemplation of the provisions of the Constitution and therefore, that the Petitioners are not entitled to any of the reliefs they seek. The Respondent urged the Court to dismiss the petition wit h costs. [19] On 2 nd February 2021, with leave of the Court, the Respondent filed a further affidavit in opposition to which the Responden t 's revised Conditions of Service dated 4 th October, 2010 and referred to in paragraphs 6 (a) and 14 (c) of the affidavit in opposition were exhibited as the conditions under which the Petitioners served. PETITIONERS' REPLY [20] The Petitioners filed a r eply in which they stated that after the Respondent refu sed to accept the 1 st Petitioner's resignation, his last J l 1 fixed term contract of employment came to an end by effluxion of time on 31 st December, 2018. That after the Respondent refused to accept the 2 nd Petitioner's application to renew his contract of employment, the 2 nd Petitioner's contract of employment expired on 31st December, 2019. That the 3 rd Petitioner's last fixed term contract of employment expired on 3 rd January, 20 19. [21] It was averred that at the expiry of their respective contracts, the 1 s t , 2nd and 3 rd Petitioners who were aged 61 years old, 59 years old and 56 years old respectively stopped working for the Respondent, hence retiring from employment with the Respondent. The Petitioners argued that the Respondent had an obligation to ensure that their gratuities were paid when they fell due, as the Respondent knew that all its employees were employed on fixed term contracts and not on permanent and pensionable basis, which contracts provided for gratuity. [22] The Petitioners averred that in its letter dated 28th April, 2020, the Respondent referred to Lubunda Ngala and J ason Chulu v Anti-Corru ption Co m mission(ll and stated that this Court in that case had interpreted pension benefits contemplated by Articles 188 J l2 and 189 as not including those due by reason of expiration of a fixed term contract. [23) They contended that s ince they were n ot paid their gratuity, their retention on the payroll was in accordance with Article 189 of the Constitution. That a s regards the amounts reflected in paragraph 1 1 of the Respondent's affidavit in opposition, the gratuity and salaries due to the Petitioners for the period that they were removed from the payroll would be worked out following a proper reconciliation of each Petitioner's account. The 1 st Petitioner asserted that the amount of K235,000.00 referred to in paragraph 11 (a) of the Respondent's affidavit in opposition was due to the 1 st Petitioner in relation to a motor vehicle which should have been sold to him and thus had no bearing on the matter before Court. [24] The Petitioners argued that to date the Respondent had n ot paid them their gratuity and therefore no money was paid to them under any mistaken belief. They insisted that as long a s their gratuity remained unpaid, they were entitled to be retained on the payroll. Further, that th ey had not been over paid because the amounts paid to the 1 st Petitioner and the 3 rd Petitioner when they J l3 were retained on the payroll were rightly paid to them; that the amounts paid to them cannot be conver ted into gratuity and that they cannot be treated as though they had been paid their gratuity. [25] The Petitioners averred that they are all above the retirement age and are not eligible for membership under the National Pension Scheme which renders them vulnerable to economic hardship unless their gratuity is paid. The Petitioners averred that they did not state that they were em ployed on permanent and pen sionable service but that, as the Respondent admitted, they were employed on fixed t erm contracts which provided for the payment of gra tuity at the end of the contract. PETITIONER'S ARGUMENTS [26) At the hearing of the petition, Mr Sit ali, counsel for the Petitioners relied entirely on the petition and affidavit verifying facts, a s well as the reply and the skeleton argum ents filed on 5 th February, 2 0 2 1 in support of the petition. He did not make any or al submissions. [27] In the Petitioners' skeleton argu1nen ts, Counsel submitted that in his view, th e only question which falls for th e Court's J l4 d etermination is whether a person who is employed on a fixed term contract which provides for the pay ment of gratuity at the end of such a contract, and who is not paid their gratuity a t the end of the fixed term contract and is no longer in employment with that employer, is entitled to be retained on the payroll in terms of Article 189 (2) of the Constitution. [2 8] Counsel submitted that the Respondent in its Answer and affidavit in opposition admitted that the gratuity due to the Petitioners arose by virtue of their respective fixed term contracts having come to an end. He submitted that the Respondent's contention that the gratuity due to the Petitioners cannot be considered to be a pension benefit to warrant their continued retention on the payroll until their gratuity is paid a s provided for under Article 189 (2) of the Constitution because the gratuity arose from their fixed term contracts having come to an end , cannot be sustained. That this position is not only inconsistent with the purpose of Article 189 but a lso ignores the definition of a p ension b en efit as contained in Article 266 of the Constitution which provides as follows: J 15 "Pension benefit" includes a pension, com pensation, gratuity, or s imilar allo wance in respect of a person 's servic e." [29) Counsel submitted that the legislature in the definition of pension benefit did not exclude gratuity earned by virtue of a fixed term contract coming to an end. That if anything; by stating that gratuity must be in respect of a person's service, the legislature made it clear that gratuity earned after the end of a fixed term contract is included in the d efinition of pension benefit. That this is because gratuity is, as in the present case, in respect of a person's service. He submitted that had the legislature intended to exclude gratuity arising from a fixed term contract from the definition of a pension benefit, it would have stated so in Article 266. [30] In support, Counsel cited Godfrey Malembeka (suing as Executive Director of Prisons Care and Cou nseling Association) v Attorney-General and Another(2 J wh erein we held that if there have to be any limitations in a constitutional provision, these h ave to be found within the cor ners of the Constitution. It was submitted that Article 266 should therefore be given a liberal inter pretation Jl 6 I which will confer its benefit on persons whose gratuity arises from fixed term contracts, a category to which the Petitioners belong. [31] Cou nsel submitted that a fixed term contract can be for any duration as there is no stipulation in any law to the contrary. He contend ed that the Respond ent had gone to gr eat len gths to show tha t the Petition er s were not employed on permanen t and pensionable basis and had exhibited it s con d itions of service to sh ow that all its employees are employed on fixed term contracts. Counsel subm itted that the fact tha t the Resp on den t's cond itions of ser vice d o not p rovide for employment on per manent and pension able b asis is immaterial to th e is sue at hand. [32] Counsel further su bmitted that the Respondent's cond itions of service, being inferior to the Constitution, cannot be r esorted to, to interpret a constitutional provision or to d eny the Petitioners a right or benefit conferred u p on th em by the Constitution. That to hold otherwise would be to annul Article 187 of the Constitution which declares th at: "An e m ploy ee, in cluding a public offic er and cons titut io n al office holde r, has a right to a pe n s ion be n efit." J l7 (33] It ·was submitted that an employee's right to a pension benefit, which by virtue of Article 266 includes a gratuity, cannot be circumvented by conditions of service which are inferior to the Constitution. Counsel cited Lubunda Ngala and Jason Chulu v Anti-Corruption Commissionf 1l in which this Court said the words 'promptly' and 'regularly' which are used in Article 189 (1) are catch words in determining what constitutes a pension b enefit. [34] Counsel submitted that the Court held that for a terminal benefit to qualify as a pension benefit it must be paid promptly and regularly and that a one-off payment does not qualify to be a pension benefit. Counsel contended that while he agreed that the type of terminal benefits which were claimed by the Applicants in the Lubunda Ngalaf1 J case, namely, accrued leave days, uniform and settling allowance did not qualify as pension benefits, he disagreed with the reasoning that for a terminal benefit to qualify as a pension b enefit it must b e paid promptly and regularly. [35] He submitted that although Ar ticle 189 (1) stat es that a pension benefit shall be paid p r on1ptly and regularly, it is not Article 189 (1) which defines what a pension benefit is but rather Article J l8 266. It was submitted that the definition in Article 266 should be given precedence over Article 189 ( 1), in determining whether a payment is a pension benefit. That Article 189 (1) is declaratory and places an obligation on the employer to ensure that pension benefits are paid regularly a n d promptly. [36] Cou nsel submitted that Article 188 which requires that a pen s ion b enefit should be reviewed periodically to take into accoun t actu arial assessment is also another declaratory provision. That it places an obligation on an employer to periodically adjust u pwards the pension benefits if such pension has n ot yet been paid to a former employee or where part of th e pension benefit, in cases where the pension benefit is payable month ly, is still being held by the employer. [37] That in the present case, Article 188 places an obligation on the Respondent to review upwards the gratuity, due to the Petitioners, to take into account inflation and other factors , from the time that the gratuity became due and payable. [3 8] Counsel went on to submit that the word 'and' as used in Article 189 (1) does not mean that payment should be capable of J 19 both being paid promptly and regularly, but rather that the word "and" should be construed to mean 'or.' That u nless the word 'and' as used in Article 189 ( 1) is constru ed as 'or' the interpretation of Article 189 and Article 266 which defines a pension benefit would lead to absurdity. That although gratuity is included in the definition of pension b enefit , it is not paid r egularly but only on ce a nd to hold that only payments which are p aid both promptly and regularly qualify to be pension benefits would lead to absurdity and conflict b etween Articles 189 and 266. [39] Counse l submitted that there are instance s when the word 'and' should be construed as 'or' to avoid absurdity in a legislation and cited G. C Thornton's Legislative Drafting at pages 9 5 -97 which states as fallows: ''The terms 'and' and 'or' are beguilingly simple; one is looked on as the antithesis of the other. 'And' is classified as conjunctive in character while 'or' is classified as disjunctive. The former connotes "togetherness" and the later tells you to "take your pick." [40] Cou nsel also called in aid Maxwell on the Interpre tation of Statutes which stated the following on construction of sta tutes: J 2 0 "In ordina ry usage , 'an d' is conjunctiv e a nd 'or' is disjunct ive . But to carry out t h e int ention o f the le g is lature it may be necessary t o re ad 'and' in t he place of the conju nct ion 'or' and v ice ve rsa. [41] Counsel cited a number of case auth orities to press the point that if construing 'and' as a conjunctive would lead to some absu rdity, then the word 'and' should be construed to mean 'or.' He submitt ed t hat in the present case, the definition of pension benefit in Ar ticle 266 includes gratuity and that it is a well-known fact that gratuity is n ot paid regularly but is paid once at the end of a fixed term contract. That since gratuity is not paid regularly but has been inclu ded in the definition of pension benefit, the correct interpretation t o be placed on the word 'and' as used in Article 189 (l ) is'or'. [42] Counsel submitted that the absurd consequ ences of the conflict between Article 189 and 266 can therefore be avoided by reading the word 'and' in Article 18 9 ( 1) as 'or'. That it is inconceivable that the framers of the Constitution would inclu de gratuity in the definition of pension benefit in Article 266 which they know is a one-off payment, only to remove it under Article 189 (1 ) for being incapable of being paid regularly. Counsel cited Atto rney- J 21 General v Chibaya and Others{3l wherein th e Supreme Court stated that: "It is settled law that an employee o n a fixed term contrac t is not e ntitled to pension bene fits or redundancy pay as such e mployees can only be entitled to gratuity at the e n d of his contract." [43] Counsel argued that the case of Chibaya is distinguishable from the present case for the following reasons: first, that the Chibaya case ·was decided before the constitutional amendment of 2016, which among other things, states that gratuity is a pension benefit. That the Supreme Court's statement in the Chibaya case ought to b e understood with regard to the constitutional context in which it was made, which is before the Constitution was amended by, inter alia, the inclusion of Articles 189 and 266; secondly, that th e Chibaya case dealt with former employees of the Department of National Parks and Wildlife Service (DNPWS) who were declared redundant on the tran sformation of that Department into th e Zambia Wild life Authority (ZAWA). The employees were engaged by ZAWA but subsequently retrenched in 2007. J 22 [44) Following th eir retr enchment, the employees commen ced an action , claiming, inter alia to be paid their terminal benefits. In dealing with the appeal on the disputed assessment by the Deputy Registrar, the Supreme Court elucidated the types of terminal benefits which were available to the Respondents as former public service employees and contrasted this with what wou ld have been payable to an employee on contract. [45] That in the present case, the words pen sion benefits were u sed to simply state that whilst public service employees wer e entitled to a pension payable by the Public Service Pensions Board, a person who was on contract and did not contribute to such a pension fw1.d, was not entitled to b e paid the same type of pension benefit as was payable to a public service employee who had been contributing to the public service fund (pension scheme from the pu blic pensions board), but that su ch an employee was en titled to gratu ity only, and that the term pension benefit as used in the Chibaya case does not m ean the same thing or was not used in the same sense as in Article 266 . That under Article 266, pens10n benefits include gratuity. Thirdly, that this Court has original and final jurisdiction to J 23 interpret the Constitution as provided in Articles 121 and 128 of the Constitution. [4 6) Counsel submitted that this Court is therefore not bound by the decision in the Chibaya case, to the extent that the said d ecision was not made in the context of the Constitu tion as amended in 2016. Counsel cited the case of Faustine Mwenya Kabwe and Another v Mr. Justice Sakala, Mr. Peter Chitengi and Attorney General l4 l in which the Supreme Cour t st ated that: "Constitutional provisions conferring individual rights and freedoms should not be narrowly construed but stretched in favour of the individual so as to ensure that the rights and freedoms so conferred are not diluted. The individual must enjo y the full m easure and benefits of the rights so conferre d and in this respect, any derogations to the rights will usually be narrowly construed." [47) Counsel went on to submit that alth ough Articles 189 (2) and 266 do not deal with in dividual rights and freedoms, they confer a right on an individual who at the end of a fixed ter m contract which provided for payment of gratuity has not been paid their gratuity to be retained on a payroll. That the Ar ticles shou ld therefore be construed in a manner which does not dilute the benefit or right conferred. J 24 [48] It was submitted that Articles 189 and 266 should be interpreted using the purposive rule of interpretation adopted by this Court in the Lubunda Ngala case so as to give legislative effect to the purpose of that provision. That the purposive rule of statutory interpret ation has also been endorsed in a plethora of cases and notably in the case of The Attorney-General, The Movement for Multiparty Democracy v Akashambatwa Mbikusita Lewanika and Others. 151 [49] It was submitted that an interpretation or holding that an employee whose fixed term contract provides for gratuity which is not paid a t the end of the contract should not be retained on the payroll would clearly be absurd and cannot be said to be consistent with the general legislative purpose of Article 189 (2). That this would be particularly absurd where, as in the present case, the employee is no longer an employee of the employer and has even exceeded the normal retirement age. [50) Counsel contended that conversely, it could not have been the intention of the framers of the Constitution to only offer protection to employees that are employed on a permanent and pensionable J 25 basis, while forsaking those who are employed on fixed term contracts and have ceased to be e1nployed by their respective employers, and have also exceeded the normal retirement age. [51) Counsel referred to the Report of the Technical Committee on Drafting the Zambian Constitution and contended that the rationale for enacting Article 189 (2) was to cushion retirees from hardships as they wait for payment of their pension benefits and that this was to be achieved by ensuring that such retirees continued to receive their salaries until Government pays them their pension benefits. [52) It was submitted that the rationale for the enactment of Article 189 (2) applies as much to persons who serve on fixed term contracts which provide for gratuity at the end of the contract. That if gratuity is not paid to them, and in circumstances where they are no longer employees of an employer and are of advanced ages as the Petitioners herein, they face the san1e exposure as retirees whose benefits have not been paid. [53) Counsel submitted that it is therefore inconceivable that protection would be offered to one category of former employees by way of retention on the payroll and denied to another category of J 26 employees who are similarly circumstanced just because they were emp loyed under fixed term contracts. He argued that a Constitution could not countenance such discrimination. [54] Counsel submitted that since gratuity 1s included in the definition of a pen sion benefit, a person employed on a fixed term contract which provides for gratuity, and who is not paid their gratuity at the end of the contract, and is no longer in the employ of the concerned employer, should be r etained on the payroll until their gratuity is paid. RESPONDENT'S ARGUMENT S [55] Mr s. Chiyengi, Counsel for the Respondent, similarly entirely relied on the Respondent's Answer, affidavit in opposition and further affidavit in opposition and the skeleton arguments filed on 17 th February, 2021. She did not make any oral submissions. [5 6] In the Respon dent's skeleton arguments , it was submitted that according to clause 5.0 (iv) of the Respond ent's Revised Conditions of Service dated October, 2010 exhibited to the further affidavit in opposition filed on 2nd Fe bruary, 2021, all employees including the Petitioners, were engaged on fixed term contracts with no provision J 27 for permanent and pensionable employment. It was furth er submitted that the Respondent contributed to the National Pension Sche1ne under the National Pension Sch eme Act, Chapter 256 of the Laws of Zambia, in respect of eligible employees. [57) It was submitted that the Petitioners wer e engaged on fixed term contracts, the last of which expired on 31 s t December, 20 18 in respect of the 1 s t Petitioner , on 31 st December, 2019 in respect of the 2 n d Petition er, and on 3 rd January, 2019 in respect of the 3 rd Petition er. That employees were entitled to end-of-contract gratuity, which fell due upon a con tract coming to an end on expiry of a fixed term, resignation, medical grounds or upon death according to clauses 15.2 (iv) (a), 15 .3 (iii), and 15.4 (iv) (c) of the Respondent's exhibited conditions of service. [58) That the Petitioners were entitled to end-of-contract gratuity but th at the Respondent did not pay them their gratuity upon the expiration of their last contracts, which is the gratuity in issue. [59] It was submitted that the Respondent initially retained the Petitioners on its payroll, on the understanding that Article 189 read together with the interpretation of pension benefit in Article 266, J 28 requires staff to b e r e tained on the payroll until the end-of-contract gratuity is p aid. That the Respondent later removed the Petitioners from the payroll, followin g a legal opinion they had r eceived based on the understanding of this Court's decision in the case of Lubunda Ng ala and J ason Chulu v Anti-Corruption Comm is sion. PI [60] That based on tha t opinion and their understanding of this Court's interpretation of the constitutional provisions in that case, the Respondent's view was that it was mistaken in its belief that end-of-contract-gratuity was inclu ded in the definition of pension benefit. That it now believes that the gratuity in iss u e was not a pension benefit within the contemplation of the constitutional provisions b ecause it was not due by virtue of the Petitioners being retired by the Respondent. [61] Further, that the Respondent would treat th e payn1ents the Petitioners received und er their erroneous retention on the payroll, as payment towards their gratuity and other terminal benefits and wou ld seek to recover any excess payments. [62] Counsel submitted that the issues at the core of the dispute which require the Court's determination are: J 29 (a) whether the Petitioners were retired from the Respondent's employment; and (b) whether the gratuity in issue is a pension benefit in terms of Articles 187 and 189, so as to entitle the Petitioners to retention on the Respondent's payroll until they are paid. [63) Counsel submitted that the Constitution has not created any pension or pension benefits and argued that it is clear from the wording of Articles 187 to 189 that it was not the intention of the framers of the Constitution to do so. Rather, that the Constitution has enshrined an employee's right to a pension b enefit and prohibited the withholding of a pension benefit or its alteration to an employee's disadvantage; the law to be applied with respect to a pension benefit; the review of a pension benefit to take into account actu arial assessments; exemption of a pension benefit from tax; prompt and regular payment of a pension benefit and retention of a person on the payroll, if h e or she is not paid their pension benefit on· the last working day, until payment of the pension benefit based on the last salary received by the person while on the payroll. [64) It was submitted that the very nature of the Constitution, being the primary law of th e lan d, envisages that there are and sh all contemporaneously be laws providing for an employee's pension J 30 benefits. That the context of the subject constitutional provisions extends to the specific laws governing the pension benefits they relate to as evidenced by Article 187 (3) which explicitly provides for the law applicable to a pension benefit. [65) It was contended that Article 266 uses the terms and phrases 'pension', 'compensation', 'gratuity', 'or similar allowance' in respect of a person's service in defining a "pension benefit." That while the term 'pension' is generally understood in ordinary and legal language to mean an amount of money paid regularly to an individual or their beneficiaries as a retirement benefit, the rest of the terms and phrases in the d efinition, including th e phrase 'gratuity' have various meanings according to ordinary and law dictionaries. [66) That the term gratuity in the context of employment service is defined in the Oxford Adva nced Lean ers Dictio n a ry as: 1. money that you give to somebody who has provided a service for you; 2. money that is given to employees when they leave their job (e.g. , a retirement gratuity). J 31 [67] Further that in Black's Law Dictionary, the term is defined under the term "bounty" a s "a premium or ben efit ... given ... to induce someone to ... perform a service . [68] Counsel als o set out the d efinitions of the words "compensation" and "allowance" given in the Oxford Advanced Learn ers Dictionary and in Black's Law Dictionary and contended that the various meanings of the terms raise the need to critically understand words or terms in context. The case of Director of Public Prosecutions v Ngandu and Others (61 was cited in support wherein the Su preme Court said: " ... But as this court has said (see for instance Sinkamba v Doyle (1l ordinary meanings or dictionary meanings of words or phrases, while they may properly be used as working hypotheses o r starting points, must always in the final analysis give way to the meaning which the context requires; and we use the word "context" in its widest sense as des cribed by Viscount Simonds in Attorney-General v H. R. H. Prince Augustus(2 l at page 53: " .. . as including not only other e n acting provis ions of the same statute, but its preamble, the existing s tate of the law, other statutes in pari material, and the mischief which I can, by those and other le gitimate means, discern that the statute was intende d to remedy.' J 32 (69] Counsel further submitted that the Petitioners were not serving on permanent and pensionable conditions of service but on fixed term contract s which entitled them to an end-of-contract gratuity. That the term 'grah.lity' as used in the employment contracts in issue was not a retirement or pension benefit and therefore fits into the first ordinary meaning assigned by the Oxford Advanced Leaners Dictionary outlined above, that is, "money given to somebody who has provid ed a service. " That on the other hand, the context in which th e term 'gratuity' and other te rms and phrases appear in Article 266 of the Con stitution assigns them a special meaning determined by the subject matter, which is pension, and that the onus is on the Petitioners to prove that the gratuity in issue fits into this context. [70] Further, that the terms and phrases begin with specific terms and end with wor ds of a general description, that is, 'or siinilar allowance.' It was contended that the words 'or similar' restrict the kind of allowances intended to the category or class (genus) to wh ich the earlier specific terms 'pension ,' 'compen sation' and 'gratuity' belong. That Bennion on Statutory Int erpre tatio n , 3 rd Edition at J 33 page 961 discusses some aspects of the application of the ejusdem generis principle in statutory interp retation which is helpful in construin g the scope of th e benefits intended by the definition in issue. That th e author refers to instances where the genus describing terms are followed by wider residuary words, quoting case law: 'According to well-es tablished rules in the construc tion of statute s, general terms following particular one s apply only to such persons or things as are ejusdem generis as those comprehended in the language of the le gis lature . ' To like effect, Lord Campbell said tha t 'where there are general words following part icular and specific words, t he general words must be confined to things of the same kind as those specified.' [71] Counsel submitted that in the present case, the definition of "pension benefit" in Article 266 is made more complex as the specific terms and the general words which follow them are not only capable of more than one meaning, but are also technical terms . That therefore, they must be assigned their technical meaning according to the laws dealing with the subject matter, that is, occupational pension laws or other related legislation in which they are found . J 34 (72] Counsel contended that to start with, given the context of the constitutional provisions, the words 'pension', 'compensation', 'gratuity' and 'similar allowance' must be generically categorised as "a payment that is a pension or a retirement benefit. " That the effect of this position is for exan1ple, that 'compensation in respect of a person's service' when used in reference to a reward of salary or wage, or in reference to an award in respect of injury suffered by an employee in the course of service who is still in employment cannot properly be included in the definition. That, similarly, 'gratuity,' or other 'allowance', such as a long service bonus, if paid by qualifying length of service or by virtue of t ermination of a contract whether by expiry of a fixed term, resignation, or by reason of death cannot be included in the definition because it is not paid as a pension or retirement benefit. (73] Counsel submitted that it follows from the foregoing arguments that, u ltimately, whether or not a gratuity is a pension or retirement benefit can only be construed in the context of the relevant occupational pension law or employment law. That there are a host of occupational pension laws and other statutes J 35 conferring or governing pension benefits and retirement benefits. Notably, that the National Pension Scheme Act, provides for membership to the pension fund under the Act, of all employees below the prescribed age generally, with few exceptions (significantly of public servants who at the time of commencement of the Act were members of the Public Service Pension Fund under the Public Service Pensions Act, Cap. 260 or the Local Authorities Superannuation Fund under the Local Authorities Superannuation Fund Act, Cap. 284). [74] Counsel contended that the context of the respective laws is imperative in d e termining the benefits to which the constitutional provisions may be applied, and further submitted that the National Pension Scheme Act provides for retirement age, pension payable on normal retirement or due to permanent invalidity (disability), and a lump sum payment to a member who attains the retirement age but does not, nonetheless, qualify for pension. [7 5] That the Act also provides for payments to specified family members under the scheme «survivor's pension" in respect of a pension or invalidity pension that a deceased me1nber was receiving J 36 or was eligible to receive before he or she died or the invalidity pension that the member would have r eceived if he or s he had not died. That in circumstances wher e eligibility for a survivor's p ension or invalidity pension are not met, a lump sum payment is paid. That the pension, invalidity pension and lump sum payment are calculated based on prescribed formulae . [76] Counsel submitted that the pension, invalidity pension, survivor's pension, survivor's invalidity pension, and lump sum payment upon retirement due to age (though not eligible for pen sion for want of other eligibility criteria) all meet the definition of "pension benefit" under the constitutional provisions . That this is because they are paid by virtue of normal retirement or retirement for permanent invalidity or retirement due to attainment of retirement age (though not qualified for pension on other criteria); or in respect of death of a me1nber who was in normal retirement or in retirement for permanent invalidity. [77] That on the other hand, a lump sum payment to a surviving family member in respect of death of a member who did not qualify for any pension or lump sum payment upon attaining retirement J 37 does not fall within the definition of "p ension benefit". Thus, the former 'lump sum' ben efit falls with in the class of 'other allowance' in the definition because it is a retirement benefit, while the latter falls out side of that class because it is not in respect of retirement. [78] That the Public Senrice Pension Fund Act covers a wide ran ge of the public senrice, namely the Civil Service, the Defence Forces, the police and prison senrices, the Zambia Security Intelligen ce Senrice and some statutory bodies. The Act defines "p ension" in section 2 as "an annual pension payable during the lifetime of t h e recipient ." The benefits under the Act include pension on attaining pensionable age and/ or other eligibility criteria; lump sum payment on retirement in certain circumstances n ot qualifying for pension; pension to sunriving spouse or child upon d eath of an officer in certain specified circumstan.ces; pension on retirement due to abolition of post (re trench1nent); and the option of commutation of pension to gratuity (lump sum), u pon retirement; gratuity upon death while discharging duties; gratuity upon resignation; and pension or gratuity (if not qualified for a pension), upon retirement on medical grounds. J 38 [79} Counsel submitted that all these benefits fall within th e definition of "pension b enefit" except gratuity u pon death a nd gratuity upon resignation. That the common qualifying factor being a benefit in respect of retirement. [80} That other legislation makes prov1s1ons for specific services which cover for instance, the Defence Act , Chapter 106 of the Laws of Zambia, provides for pension in respect of servicemen on permanent and pensionable terms upon r etirem ent in various circumstances . That it also provides for a pensionable age 1 which is different from that provided for in the National Pension Scheme Act and that generally provided for in the Public Service Pensions Act. That the Defence Act also provides for payment of various types of gratuity in different cir cum stances such as officers employed on short term basis, those whose service terminates in circumstances where they are not eligible to receive pension, s uch as upon resignation, discharge or d ismissal from service; circumstances where eith er pensions or gratuity may be paid by discretion of the Republican Pres ident, or where gratuity may be paid on retirement or early retiremen t instead of a pension. J 39 [81) Counsel referred to the Pensions Scheme Regulation Act No. 28 of 1996 as being an overarch ing statu te wh ich provides for establishment, registration and prudential regulation and supervision by the Pen sions and Insurance Au thority (PIA) of pension schemes and fu nds administered u nder them. [82] Counsel submitted that the occupational pen s ion law framework in Zambia, starting with the constitutional provisions in issue, entail in effect that no employer subscribes to or adm inister s a pension scheme or devises contractual retirement benefits n ot governed and r egulated by statutory law. That at th e same time, the law ensures that there are statutory pension sch emes capturing all sectors of employment and all eligible employees. That this system is in tandem with the object of guaranteeing the right to a p ension benefit, while ensuring that the p en sion system operates in a manner that lends itself to transparency and effective pru dential regulation and supervis ion. [83) It was submitted that the Employment Code Act No. 3 of2019 wh ich came into for ce on 19 th May, 2019, reinforces this position which is inherent in our laws, as it states in s ection 52 (7) (a) and J40 (c)) that employment expires at the end of the term for which it is expressed to be made or on the employee a ttaining the applicable retirement age, where the contract of employment is permanent in nature. [84] That section 54 (1) (b) of the Act provides that an employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less than twenty-five percent of the employee's basic pay earned during the contract period or the retirement benefits provided by the relevant social security scheme that the employee is a member of, as the case may b e. [85] While section 58 of the Act provides that an employee's contract of employment shall expire by reason of retirement, where the employee attains the age of retirement under a written law. [86] Counsel thus contended that accordingly, in her view any alleged retirement and retirement benefit can only exist as defined by or under an occupational pension law or a specific piece of legislation making provision for that retirement and pension or J 4 1 retirement benefit. It was submitted that the Pe titioners have not d emonstrated how the gratuity in issue fits into the definition of "pension benefit" in Article 266 of the Constitution. [87] While conceding that there is a principle that constitutional provisions conferring a right should be liberally and generously interpreted, as argued by the Petitioners, Counsel argued that tha t principle cannot be applied in vacua or in a manner where an en1ployer or employee arbitrarily determines that an employee has been retired by the employer or t h at an employment benefit constitutes a pension benefit. Counsel submitted that the proposition by the Petitioners that they had attained retirement age a nd, therefore, that the end of fixed term contract gratuity in issue was due to their being retired from the Respondent's service was arbitrary and untenable . That the proposition does not accord ·with the constitutional provisions and is not supported by any pension law or employment law in Zambia. [88] Counsel further contended that while it was apparent that the Petitioners may have, at some point in their working history, retired and received pension benefits under some occupational pension law J 42 and pension scheme(s), they had not shown under what law they claim to have been retired by the Respondent and under which scheme or law the gratuity they claim is a retirement benefit. That they cannot legitimately make these claims by merely making r eferen ce to the con stitutional provisions in general terms. [89] That equ ally, they cann ot validly claim that by reason of their being "beyond th e pensiona ble age" as defined for NAPSA, the end of their fixed term contracts, constituted retirement by the Respondent and that the gratuity con stitutes a pension ben efit in terms of th e constitutional provisions. [90] In concluding h e r arguments, Counsel referred to the Lubunda Ngala case in which she said this Court made cardinal pronouncements relating to the constitutional provisions in issue. That of central import this cou rt determined at page J 32 that: "... it would be wrong to say that all terminal benefits simply beca use they arise from the termination or coming to an end of the employment contract, should be considered or interpreted to be the s ame as a pension bene fit . ... Thus, it c a n be correctly said that a pens ion benefit is triggered by retirement due to age or othe r circumstances." J43 [91] Counsel further submitted that the Court further considered the kind of benefits contemplated by the Constitution by reference to Article 189 ( 1) which requires that a p ension b enefit should be paid 'promptly and regularly" . Th at the Court referring to the terminal benefit s in contention in that case posed the question: " ... c an the s e be paid prom pt ly a nd regularly? The answ er is that they cannot because while they can be paid promptly, t hey cannot be reg ularly paid as t hese a re one-off payments." (At page 34 ) [92) Counsel submitted that the Court in the interpretation of Article 189, reasoned that the starting point in understanding the rationale behind the enactment of Articles 189 and the definition of 'pension benefit' in Ar ticle 266 is Article 188. [93) That the Court traced the contextual history of the constitu tional provis ions which clearly demonstrated that the enactments were intended for benefits that are du e by virtue of retirement. It was submitted that the present case, though not dealing with the type of allowances the Lubunda Ngala case dealt with, is on point in substance as the gratuity in issue merely "arose from th e t ermination or coming to an end of the employment J 44 contracts." That although the Petitioners have made a claim to the effect that the benefit was "triggered by retirement," they have failed to prove their claim .. [94] Counsel argued that the Petitioners ' argument relating to periodical review of a pension ben efit to take into account actuarial assessments in relation to gratuity, was misconceived because periodical actuarial assessment of pension benefits is a mandatory constitutional requirement and is a universal practice and a basic standard prescribed under the overarching Pension Scheme Regulation Act, the National Pension Scheme Act and all other p ension laws . That it is an objective standard which protects th e value of pension b enefits. The fact that it is not feasible to actuarially review an end-of-contract gratuity granted by an employer the rate of which, as in the present case, is s imply stated as 35% of all the remuneration paym ents received by an employee simply shows that it does not fit into a pension benefit as envisaged by the constitutional p r ovisions and the related p ension laws of the country. J45 [95] Regarding the prov1s10n requ1nng that a pension must be promptly and regularly paid, Counsel sub1nitted that th e core of pension laws is to secure sustained income for pensioners. That provision for b en efits such as gratuity or other lump sum amounts as retirement b enefits is u sually supplemental to r egular pension , or in lieu of regular pension by default, or where eligibility to regular pension is not met, or by voluntary option of a beneficiary. That one-off payments are thus not the norm, but the exception. [96] Counsel contended that in view of the general object of securing a pension that is promptly and regularly paid, the exceptional one off paymen ts are not, in terms of legislative policy, a concern of the constitutional enactments. That th e language of the provision is su ch that, thou gh explicitly leaning towards regular pension, it does not present any difficulty given th e array of tools available in statutory interpretation. That the word 1and ' b etween the words 'promptly' and 'regularly' would not be construed conjunctively in circumstances where a person who retired is paid a lump su m. Counsel submitted tha t this flexibility does not take away from the fact that whe n considering whether a ben efit is a pension benefit J 4 6 under the constitutional prov1s1ons, the question whether it is capable of being paid promptly and regularly, as explicitly stated, has central value and may in some cases lead to speedy resolution of the case at hand. [97) Counsel further submitted that in the Lubunda Ngala case, the fact that while the allowances in issue could be promptly paid but could not be regularly paid was a flashlight for judicial scrutiny. It was submitted that indeed if a terminal benefit cannot be paid promptly and regularly, as in the present case, it calls for critical examination even if it is alleged to b e a pension benefit. [98] Counsel submitted that in terms of tax exemption, there would be a serious anomaly with far reaching i1nplications for revenue collection if employers and employees were left to devise their own retirement benefits unregulated by law, whilst enjoying the tax exemption granted by the Constitution, and that this was not the intention of the framers of the Constitution. It was submitted in conclusion that the gratuity in issue could not by any legitimate consideration b e a p ension benefit as contemplated by the Constitution. J 47 [99] Counsel urged us to dismiss the Petition with costs, and to order that the payments made to the Petitioners by virtue of their retention on the payroll were properly applied by the Respondent as payments towards gratuity and other terminal benefits and that any excess payments should be p aid back to the Respondent. EVALUATION AND DECISION [100] We have considered the contents of the petition, the answer and the accompanying affidavits on both sides together with the respective skeleton arguments filed by the parties and the authorities cited therein. [101] In the main, the Petitioners seek a d eclaration that the Respondent's d ecision to r emove them from t he payroll before paying them their gratuity a s stated in the Respondent's letter of 28th April, 2020 is unconstitutional. They further seek an order that they b e retained on the payroll and b e paid their withheld salary arrears and allowances until they are paid their pension benefits which are in the form of gratuity. We shall consider these claims together as they are related. J 48 [102] The issue we have to d etermine is whether the Respondent contravened Ar ticles 187 and 189 of the Constitution by removing the Petitioners from its payroll before paying them their gratuity. Related to that issue is the question whether the gratuity due to the Petitioners at the expiry of their respective contracts of employment with the Respondent is a pension benefit for purposes of Article 189 (2) of the Constitution thereby entitling them to be retained on the payroll. [10 3 ] Before delving into the issues raised in this matter, we wish to state that although the parties in this case argued at some length regarding their understanding of our decision in the Lubunda Ngala case, our view is that the decision in that case was specific to the nature of the allowances and reliefs sought by the Applica nts in that case. We further take the view that this case can b e d etermined without referen ce to that decision . We will therefore not review the arguments advanced by the parties r egarding the Lubun da Ngala d ecision in this case . [104] In dete rmining the Petitioners' claims, we begin with a consideration of Articles 187 and 189 read with the definition of J 49 pension b enefit in Article 266 of the Constitution. Article 187 of the Constitu tion reads as follows: "( l ) An employee, including a pub lic officer and Constitutiona l o ffice holder, has a right to a pension benefit. (2 ) A pension bene fit shall not be withheld or altered to that employee's disadvantage. (3} The law to be applied with respect to a pension benefit- (a} (b) before the commencement of this Constitution, shall be the law that was in force immediately before the date on which the p e nsion benefit was granted or the law in force on a later date that is not less favourable to that employee; and after the commencement of t his 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 that e mployee." (Emphasis added). [105] Article 189 provides as follows: "(1) A pens ion benefit shall be paid promptly and regularly. (2) Where a pension benefit is not paid o n a pers on's last working day, that person shall stop work but the person's name shall be reta ined on the payroll, until payme nt of the pension benefit based on the last salary receive d by that person while on the p a yroll." [106] Lastly, Article 266 of the Constitution defines what a pension benefit is in the following terms: "266. In t his Constitution, unless the c ontext othe rwise requires- J SO "pension benefit'' includes a pension, compensation, gratuity or similar allowance in respect of a person's service." [106] A literal interpretation of the whole of Article 187 reveals that clause ( 1) confers on an employee, including a public officer and constitutional office holder, a right to a pension benefit; clause (2) provides in imperative terms that a pension benefit shall not be withheld or altered to an employee's disadvantage thereby providing protection against the arbitrary withholding or alteration of an employee's pension benefit. Article 187 (3) is instructive and unequivocal. It states that the law to be applied to a pension benefit before the commencement of the Con stitution is the law that was in force immediately before the date on which the pension benefit was granted or the law in force on a later date that is not less favourable to that employee. Further, that the law to be applied to a pension benefit after the commencement of the Constitution is the law on the date on which th e pension benefit was granted or the law in force at a later date that is not less favourable to that employee. [108] It is evident fron1 the plain language of Article 187 (3) of the Constitution that the framers of the Constitution intended that a J 51 pension b enefit to which clauses (1) and (2) of Article 187 should apply is a pension benefit which was granted to an em p loyee by or under an Act of Parliament. We are fortified in our interpretation by the rationale for draft Article 252 given a t pages 670 to 671 of the Report of the Technica l Committee on Drafting the Zambian Constitution dated 30th December, 2013, which Technical Committee comprised the framers of the Constitution, when they said: "The rationale for the Article was to provide for pension of public officers in the Constitution as a right that could be enforced in a court of law. The Committee observed that such pensions are part of social security schemes whose fundamental objective is to protect individuals from the hardships which will otherwise result from unemployment, retirement or death of a wage earner." (Emphasis a dded). [109] Draft Article 2 5 2 as recommend ed by the Technical Committee in the First Draft Constitution, which was the forerunn er to Article 187 of the Constitution, read in full as follows: (1) The right of a public officer to a pension, gratuity or retrenchment benefit is hereby g uaranteed. (2) Any benefit to which a public o fficer is entitled by or under an Act of Parliament, shall not be withheld or alte red to that officer's disadvan tage, except that such J 52 benefit may be altere d by way of a n upward adjustment t o the extent prov ided b y law. (3) T he law to be applied with respect to any pension b enefits that were granted t o any pers on b efore the c ommence m e nt of this Constitution shall be the law in force that is most favourable t o that person. (4) The law to be applied with res pect to pension benefits, o ther than as provided in clause (2), shall, where t hose benefits are wholly in respect of a period of service as a public officer, m e mber of the Defence Force or of the national security agencies that commenced before or after the commencement of this Constitut ion, be the law in force that is most favourable to that person. (5) Pension benefits, unless otherwise charged on a fund established by or under an Act of Parliament, shal1 be a charge on the Consolidated Fund. (6) In this Article, "pension benefits" includes any pension, compensation and gratuity or similar allowance for persons in respect of their service as public officers, members of the Defence Force and nat ional security a gencies or for the widows, children, dependants or personal representatives of thos e persons in respect of the service. (Emphasis added) [110) Following public consultations at district, provincial and national level, the Technical Committee cha nged the marginal note which previously read "Pension, Gratuity a nd Re trenchment Benefit for Public Officers" to r ead "pension benefit". The Technical J53 Committee also resolved to retain clauses (1), (2 ) and (5) of the draft Article 252, but r ed rafted the Article and r enumbered it as Article 224. The redrafted Article 2 24 which was recommended in the Final Draft Con stitution of t h e Tech n ical Committee, as set out at page 673 of the Repor t, r ead as follows: "(1) An employe e, 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 tha t employee's dis advantage . (3) The law to be applie d with respect to a pension bene fit- (a) before the commencement of this Cons titution, shall be the law that was in force immediately before t he date on which the pension benefit w a s granted or the law in force on a later date that is not less favourable to tha t employee; a nd (b) after the commencement o f this Constitution, shall be t he law in force o n the date on which the pens ion benefit w as granted or the law in force a t a later date that is not less favourable to tha t employee." [111] It will be observed from the p rov1s1on s set ou t above that Article 224 of the Final Draft Constitution wa s en acted word for word as Article 187 of the cu rrent Constitution. Si1nilarly, the definition of pension benefit in draft Article 252 (6) of the First Draft J 54 Constitu tion influenced the definition of pension benefit in Article 266 of the Con stitution. It will also be observed that the int ention of the framers of the Constitution regarding pen sion benefits was made clearer still when the d efinition of pension benefits was included in clause (6) of draft Article 252 in relation to clause (2) of that Article. [1 12) When considered side by side, clauses (2) and (6) of draft Article 252 read as follows: (2) Any benefit t o which a public officer is entitled by or under an Act of Parliament, shall not be withheld or altered to that officer's disadvantage, except that such benefit may be altered by way of an upward adjustment to the extent provided by law. (6) In this Article, "pen sion benefits" includes any pension, compensation and gratuity or similar allowance for persons in re spect of their service as public officers, members of the Defence Force and national security agencies or for the widows, children, dependants or personal representatives of those persons in respe ct of the s e rvice. [113) It will b e observed that when rea d sid e by side, clauses (2) and (6) of dr aft Article 252 put, beyond d ebate, the question of w h at the framers of the Constitution intend ed to provide for as pension benefits in the Constitution. J 55 [114] Having said that, in order for us to determine whether the Respondent breached Articles 187 and 189 of the Constitution by removing the Petitioners from its payroll before paying them their gratuity, we must first settle the question whether the gratuity to which the Petitioners were entitled at the end of their contracts was a pension benefit in terms of Articles 187 and 189 of the Constitution as envisaged by the framers of the Constitution. The question which comes to the fore in this case is what is a pension benefit in terms of Art icle 187 and 189 of the Constitution? [115] In answe ring that question, we are alive to the definition of pension benefit in Article 266 of the Constitution which includes a pension, compensation, gratuity or a similar allowance in respect of a person's service. However, the issue is not whether gratuity is in.eluded in the definition of pension benefit in Article 266. Rather, the issue is whether the particular gratuity claimed by the Petitioners in th is case, and which is in issue, is a pension benefit for purposes of Articles 187 and 189 of the Constitution. It is settled law that when interpreting the Constitution, all the provisions touching on the subject for interpretation must be considered J 56 together and that no provision should be read in isolation from the other provisions. [1 16] Therefore, in this case, the definition of pension benefit should be interpreted in the light of the substantive provisions of Articles 187 and 189 of the Constitution. As we already stated earlier in this judgment, Article 187 (3) of the Constitution sheds clear light on what p ension benefits the framers of the Constitution intended to provide for in Articles 187 to 189 of the Constitution by referring to the law to be applied to a pension benefit. [117) The framers of the Constitution provided for a11. employee's right to a pension b enefit in broad terms in the Constitution and left the details of the pension benefit to be stated in an Act of Parliament as clearly implied by Article 187 (3). The plain language of Article 187(3) reveals that the provisions of the Constitution relating to a pension benefit must be read together with releva11.t pension laws. This is because Article 187(3) makes it plain that there is a law to be applied to a pension benefit referred to in clauses ( 1) and (2) of Article 187 and clearly states which law that is in paragraphs (a) and (b) of clause 3 of Article 187. J57 [1 18] In that regard, we take judicial notice that there are several pension laws contained in Acts of Parliament including the Public Service Pensions Act, Chapter 260 of the Laws of Zambia, relating to pensions and other benefits for persons employed in the public service, the National Pension Scheme Act, Chapter 256 of the Lav.rs of Zambia which constitutes the National Pension Schem e out of which pension b en efits are paid t o members and the Judges (Conditions of Service) Act, Chapter 277 of the Laws of Zambia which provides for , inter alia, retirement benefits for judges, to name a few. Our taking j udicial notice of the pension laws is based on the provisions of section 6( 1) of the Interpretation and General Provisions Act, Chapter 2 of t h e Laws of Zambia, which states that every Act, Applied Act or British Act shall be a public Act and shall be judicially noticed as such . [119] Given that the pension ben efit referred to in Ar ticles 187, 188 and 189 of the Constitution, is a p ension 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 p ension benefit which is not paid to an employee J 58 on the last day of work s h ould be a pension benefit granted by or under the relevant pension law or other law applicable to that employee's service. (120] In the present case, the Petitioners contended that the gratuity due to them u nder their expired r esp ective contracts of employment is a pension b enefit which qualifies them to be retained on the payr oll pursuant to Artide 189(2). They premised their contention on the d efinition of pension benefit which includes gratuity in Article 2 66 of the Constit ution. They argued th a t sin ce their right to a pension benefit was conferred on them by Ar ticle 187 of the Constitution, and that since a pension benefit under Article 266 includ es a gratuity, it cannot be circumvented by the Respondent's conditions of service which are inferior to the Constitution. [121] The Petitioners argued that according to th e Technical Committee's report, which we referred to earlier in this jud gment, the rationale for enacting Article 189 (2) was to cushion retirees from hardships as they wait for payment of their pension benefits and th at this would be achieved by ensuring that s u ch retirees continued to receive their salaries until the Government pays them J 59 their pension benefits. That the rationale for the en actment of Article 189 (2) equally applies to persons who serve on fixed term contracts which provide for gra tuity at the end of the contract. That if gratuity is not paid to such persons, and in circumstances wher e they are no longer employees of an employer and are of advanced ages as the Petitioners in this case are, they would face the same hardship as retirees whose benefit s have not been paid. [122) In the Petitioners' view, s ince gr atuity is included 1n the definition of a pension b enefit, a p erson employed on a fixed term contract which provides for gratuity, and who is not paid their gratuity at the en d of the contract, and is no longer in the em ploy of the con cerned employer, should be retained on the payroll u ntil their gratuity is paid. They, therefore, allege th at the Respondent breached Ar ticles 187 a nd 189 when it removed t hem from the p ayroll without p aying them t heir gr atuity. [123) In rebuttal the Respondent contended that the issues at the core of the dispute are the qu estions whether the Petitioners were retired from the Respondent's employment; and wheth er the gratuity in issue is a pension benefit, in terms of Articles 187 and J 60 189, so as to entitle the Petitioners to retention on the Respondent's payroll until they are paid. The Respondent took the p osition that the Constitution has not created any pension or pension benefits and that going by the wording of Articles 187 to 189, it was not the intention of the framers of the Constitution to do so. [124) That what the Constitution has done is, inter alia, to enshrine a n employee's right to a pension benefit, prohibit the withholding of a pension benefit or its alteration to an employee's disadvantage; state th e law to b e applied to a pension benefit; provide for the prompt and regular p ayment of a pension benefit and require retention of a person on the payroll, if the p er son is not paid their pension benefit on the last working day, until payment of th e pension benefit. [125) The Respondent emphasized that the Petitioners were not serving on permanent arid pensionable conditions of service but on fixed term contracts which entitled them to an end-of-contract gratuity. Further, that the term gratuity as used in the employment contracts in issue vvas not a retirement or pension benefit but fitted in the category of money paid to a person wh o h ad provided a service J 61 ... as per ordinary meanrng of the word assigned by the Oxford Advanced Leaners Dictionary cited earlier on. [126) Th e Respondent argued that, on the other hand, the context in which the word gratuity appears in Article 266 of the Constitution assigns it a special meaning determined by the subject matter, which is pension, and that the onus is on the Petitioners to prove that the gratuity in issue fits into this cont ext. It was argued that the Petitioners' alleged retirement and r etirement benefit c a n only ex ist as defined by or und er a n occupational pension law or a specific piece of legislation providing for that retirement and p en sion or retirem ent benefit. The Responden t contended tha t the Petitioners had not demonstrated how the gratuity in issue fits in.to th e definition of pension b enefit in Article 266 of the Constitution. The Respondent thu s denied t h a t it breached Articles 187 and 189 of the Con stitution and reiterated that the gr atuity in issue is not a p ension b enefit in view of our decision in the Lubunda Ngala case. [127] As we already stated earlier in this judgment, Article 187(3) read with the definition of pension benefit in Article 2 66 are central to the resolution of the dispute in t his m atter and to the J62 • determination of the question whether the gratu ity in issue is a pension benefit as it states wh at pension benefit was envisaged by the framers of the Constitution. In light of the clear provisions of Article 187(3), it was incumbent upon th e Petitioners to adduce cogent evidence to prove that the gratuity in issue was a pension benefit granted to them by or under a relevant pension or other law, which law they should have clearly cited. However, they did not adduce any su ch evidence. It is settled law that the burden of proof in a civil action lies on the p arty who asserts the affirmative of the issues. Th e learned authors of Phipson on Evidence, 1 7 th edition in paragraph 6 -0 6 at page 15 1 state the following regarding the bw·den of proof in civil cases: "So far as the persuasive burden is concerned, the burden of proof lies upon the p arty who substantially asserts the a ffirmative of t he issues. If, when all the evidence is a dduced by all parties, t he party who has this burden has not discharged it, the decision must be against him." [128] As Counsel for the Respondent rightly submitted, in view of the provisions of Article 187 (3 ) which p rovides for the law which will be applied in respect of a pension benefit, whether a gratuity J 63 ) payable in a specific cas e is a pension benefit can only be determined in the context of the relevant pens ion law or other law . As the Petitioners d id not addu ce any evidence th at the end of contract gratuity due to be paid to them by the Respondent was a pension benefit granted to them by or under a pension or other la~r, we find that the Petitioners have not proved the allegation that the Respondent breached Article 187 and 189 by removing them from the payroll. We therefore d ecline to grant them the declaration that their removal from the payroll was unconstitutional and dismiss the claim. We further dismiss the rest of the claims and r eliefs sought as they were premised on the first claim. In sum, the petition wholly fails and is dismissed. (129] Notwithstanding the dismissal of the petition, we hasten to state that whereas the Respondent urged us to order that the payments mad e to the Petitioners by virtue of their retention on the payroll were p r operly applied by the Respondent as payments towards gratuity and other terminal benefits a nd that any excess payments should be paid back to the Respondent, these are not constitutional issues which we can determine in these p roceedings . J 64 .. [130] Since this litigation enabled u s to settle an important con stitutional issue relating to pension benefits, each party will bear th eir own cos t s of th is action. H. CHIBOMBA PRESIDENT, CONSTITUTIONAL COURT f>M~ , ············~ - -~· -· ··· ············ ···· A. M. SITALI M. S. MULENGA CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT J UDGE ·· ····· ····· ··· · ···· ····· · ~ ······ · ····· ··· · M. M. MUNALULA CONSTITUTIONAL COURT JUDGE J 65