Professor Mumba and Anor v Council of the University of Zambia (CCZ 12 of 2022) [2022] ZMCC 46 (12 December 2022)

IN THE CONSTITUTIONAL COURT HOLDEN AT LUSAKA (Constitutional Jurisdiction) 2022/CCZ/0012 IN THE MATTER OF: 12 DEC 2029 IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: OF CONSTITUTION THE ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA AS AMENDED BY THE CONSTITUTION OF ACT ZAMBIA NO. 2 OF 2016 (AMENDMENT) ARTICLES 187 AND 189 (1) AND (2) OF THE CONSTITUTION OF ZAMBIA ACT NO.2 OF 2016 (AMENDMENT) ALLEGED CONTRAVENTION OF ARTICLE 189(1) AND (2) OF OF CONSTITUTION THE ACT (AMENDMENT) ZAMBIA NO. 2 OF 2016 ALLEGED CONTRAVENTION OF THE ARTICLE CONSTITUTION ZAMBIA (AMENDMENT) ACT NO.2 OF OF OF LOCAL AUTHORITIES THE SUPERANNUATION FUND (AMENDMENT) ACT NO. 8 OF THE HIGHER EDUCATION ACT NO. 4 OF 2013 THE UNIVERSITY OF ZAMBIA FIRST IN FIRST OUT POLICY BETWEEN: LUKE EVUTA MUMBA (PROFESSOR) TAMALA TONGA KAMBIKAMBI (DR) 18ST PETITIONER 2ND PETITIONER AND THE COUNCIL OF THE UNIVERSITY OF ZAMBIA RESPONDENT CORAM: Mulonda, Musaluke and Chisunka, JJC on 14th September, 2022 and 12th December, 2022 APPEARANCES: For the Petitioners: P. Songolo - Philsong and Partners Legal Mr. Practitioners. For the Respondent: Mr. R. Hatoongo - Legal Counsel, UNZA. Ms. T. Nkhoma - Legal Officer, UNZA. JUDGMENT Chisunka, JC, delivered the Judgment of the Court Cases referred to: 1. 2. 3. 4, 5. 6. v and Open Mwale Others Mwale Zambia University, Anderson 2021/CCZ/O001 Lubunda Ngala and Jason Chulu v Anti-Corruption Commission, CCZ Selected Judgment No. 4 of 2018 National v Levy 2020/CCZ/0012 Owen Mayapi and 4 Others v Attorney General, 2019/CCZ/003 Lieutenant 2021/CCZ/0034 Gilford Malenji v Zambia Airports Corporation, 2021/CCZ/005 Broadcasting Corporation, Muchindu Attorney Chrispin General, Zambia S. v_ J2 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 2 of The Higher Education Act No. 4 of 2013 The Local Authorities Superannuation Fund Act Chapter 284 of the Authorities Local of Zambia as amended by Superannuation Fund (Amendment) Act No. 8 of 2015 Laws the Introduction and Background i, Professor Luke Evuta Mumba and Dr. Tamala Tonga Kambikambi (the “Petitioners”) filed a Petition on 15% June, 2022, against the Council of the University of Zambia (the “Respondent”) alleging contravention of Articles 187, 189(1) and (2) of the Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act No. of 2016 (hereafter the ‘Constitution’. The Petitioners seek the following relief against the Respondent: 1.1. 1.2. A declaration that the decision by the Respondent to remove the Petitioners off the payroll without paying the said Petitioners’ terminal 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; 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 void; J3 Los 1.4. 1.5. 1.6. An Order that the Petitioners be retained on the payroll and paid their withheld salary arrears until such a time that they are paid their pension benefits in full; Interest on all sums granted from date of cause of action to the date of full and final payment at the current commercial bank lending rate; Costs; and Such other order that this Honourable Court shall deem just. The Petitioners’ Case 2. 2.1. The background material facts are contained in the Petition and the affidavit verifying facts. The affidavit verifying facts was sworn by the Petitioners. Collectively, the Petition and the affidavit disclosed that: The 1st Petitioner was employed as a Lecturer by the Respondent in 1988 until he applied for early retirement on 29th January, 2014. He served the Respondent for a period of nineteen years. His retirement benefits upon early retirement were pegged at K 2,166,382.01. 2.2. On 34 June, 2021, the Respondent paid the 1st Petitioner his retirement benefits owed under the 1988 employment contract for his nineteen years’ service. J4 2.3. appointed Respondent 2016, the May, 7th On Petitioner as Vice Chancellor for a period of five-years. On 30% e, 2021, the five-year employment contract came to an end 1* The Respondent computed the Jun time. effluxion of by the 1* Petitioner’s terminal benefits or gratuity under the five-year contract in the sum of K 2,089,407.67. To date, this amount remains unpaid. 2.4. On 17 May, 2021, the Respondent re-appointed the 1* Petitioner as Vice Chancellor for another period of five-years. On 6t May, 2022, however, the Respondent terminated the 1st Petitioner’s contract without paying him his retirement benefits and terminal benefits or gratuity on the dates they fell due namely, 29 January, 2014, 30 June, 2021, and 6th May, 2021 respectively. 2.9. The 274 Petitioner was employed by the Respondent as a Lecturer in 1998. On 31st January, 2019, she applied for and proceeded on early retirement. Her retirement benefits were computed in the amount of K4,342,039.70. 2.6. Before the 274 Petitioner’s retirement benefits were paid, the Respondent appointed her as Deputy Vice Chancellor on 27th February, 2020, for a period of four years. Js 2.7. On 6t May, 2022, however, the Respondent terminated the 2.4 Petitioner’s employment contract without paying her retirement benefits and terminal benefits or gratuity on the dates they fell due namely, 31st August, 2020 and 6 May, 2022. 2.8. Following the Petitioners’ termination from employment as Vice Chancellor and Deputy Vice Chancellor, respectively, the Respondent removed them from the payroll, despite the fact that their retirement or pension benefits and terminal benefits or gratuity remained unpaid. The Petitioners Arguments 3. The Petition was accompanied by written skeleton arguments and an abstract of authorities. The Petitioners argued that: 3.1. They had a right to be paid a pension benefit upon their separation based on Article 187(1) and (3) of the Constitution, which provides that: 187. (1) An employee, including a public officer and Constitutional office holder, has a right to a pension benefit. (2) (3) —sswenwasiiaeasensseeeaens The law to be applied with respect to a pension benefit — (a) before the commencement of this Constitution, shall be the law that wasin the immediately before force J6 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 that employee. 3.2. In the case of Anderson Mwale and Others v Zambia Open University! this Court pronounced that the pension benefit envisaged by the framers of the Constitution is granted under or by a relevant pension law or any other law. 3.3. In this case, the law under which the Petitioners seek to be granted their pension benefit is section 38 (3) (b) (iii) of the Higher Education Act No.4 of 2013 (the “HEA”) for the 1st Petitioner and section 5 of the Local Authorities Superannuation Fund (Amendment) Act No. 8 of 2015 (the “LASFA”) for the 274 Petitioner. 3.4. The retirement benefits and gratuity due to the Petitioners amounted to a pension benefit in terms of Article 266 of the Constitution. termination of contracts, however, the Respondent did Petitioners their pension benefits or the gratuity owed but employment Upon their pay not the J7 removed them from the payroll contrary to Article 189(2) of the Constitution which provides that: 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. 3.5. The Petitioners ought to have been paid their pension benefits promptly as pronounced in the case of Lubunda Ngala and Jason Chulu v Anti-Corruption Commission?. The Respondent’s non-payment of pension benefits entitled the Petitioners to be retained on the payroll. 3.6. By virtue of Article 1 of the Constitution, the Respondent’s first-in-first-out policy (“FIFO policy’) and its internal memorandum on pre-requisite for statutory retirement and retention of employees on the payroll dated 12th February, 2019 is unconstitutional because it disqualifies discharged employees from being retained on the payroll while awaiting payment of pension benefits. 4. At the hearing of the Petition, Counsel for the Petitioners augmented the written skeleton arguments with oral submissions. Counsel relied on the cases of Levy Mwale v J8 Zambia National Broadcasting Corporation? and Owen Mayapi and 4 others v Attorney General‘ and submitted that: 4.1. The 1s Petitioner’s retirement benefits for the nineteen years he served the Respondent were paid. Thus, the 1st Petitioners grievance was the Respondent’s failure to pay gratuity under the five-year contractual term running from 2016 up to 2021 and the pro-rated gratuity for the subsequent contract. 4.2. Section 38(3) (b) (iii) of the HEA directs the Respondent to pay terminal benefits to academic and administrative staff or employees. Thus, this provision underpins the 1st Petitioner’s right to be paid a gratuity and since he was not paid on the date that he was dismissed, he ought to have been retained on the payroll. 4.3. The 2n¢ Petitioner’s retirement benefits are granted under section 5 of the LASFA which provides that a member of the Fund shall be paid a retirement benefit, The 2nd Petitioner was a member of the Fund and she was entitled to be paid. The Respondent did not, however, pay the 24 Petitioner’s retirement benefits for the twenty-two years she served the Respondent. J9 4.4. A pension benefit must be paid promptly, on an employee’s last working day. Thus, an employee whose gratuity is protected by statute must be retained on the payroll. 4.5. The gratuity owed to the Petitioners under their fixed term contracts is protected by the HEA whereas the pension benefits under their permanent and pensionable contracts is protected by the LASFA. 4.6. Thus, the Respondent contravened the Constitution by not paying the Petitioners their pension benefits in full on their last working day and not retaining them on the payroll during the period their pension benefits remained unpaid. 4.7. The Respondent must pay the Petitioners their pension benefits and retain them on the payroll for the period their pension benefits were not paid based on their last salary which they received in their capacity as Vice Chancellor and Deputy Vice Chancellor, respectively. The Respondent’s Case 5. The Respondent filed an Answer to the Petition on 27% June, 2022, in which it was asserted that it did not contravene J10 Article 189(1) and (2) of the Constitution and that the Petitioners did not show the laws that support their claim for retention on the payroll. The Respondent’s affidavit verifying answer was deposed to by its Registrar, Theresa C. Chalwe. The affidavit disclosed that: 5.1. The Petitioners were employed as Lecturers in 1988 and 1998 and retired in 2014 and 2019, respectively. Upon retirement, the Respondent informed them that their retirement benefits would be paid in accordance with the FIFO policy. The Petitioners did not challenge the decision to be paid using the FIFO policy. 9.2: In May, 2016, the 1st Petitioner was engaged by the Respondent on a_ five-year fixed term contract as Vice Chancellor. The 1st Petitioner was further engaged for another five-year contract in July, 2021. In February, 2020, the 2nd Petitioner was engaged by the Respondent as Deputy Vice Chancellor on a four-year fixed term employment contract. D0. On 6th May, 2022, the Petitioners’ fixed term employment contracts were terminated pursuant to their respective terms and they were paid three months pay in lieu of notice. On or Jll about 3'4 June, 2022, the 1st Petitioner was paid his pension benefits in line with the FIFO policy. 5.4. The Petitioners were removed from the payroll following this Court’s decision in numerous cases on the retention of employees who serve on fixed term contracts. In addition, Cabinet Office issued circular no. B25 of 2022 directing that employees who served on contractual terms of appointment, such as the Petitioners, should not be retained on the payroll pending payment of gratuity. 5.5. The 24 Petitioner, however, is listed on the queue for payment of her retirement benefits and gratuity and she will be paid in accordance with the FIFO policy. The Respondent’s Arguments 6. The Respondent filed written skeleton arguments on 28 July, 2022. The Respondent cited the cases of Lubunda Ngala and Jason Chulu v Anti-Corruption Commission? and Anderson Mwale and Others v Zambia Open University! and argued that: J12 6.1. The rationale for retention on the payroll is to cushion retirees from the financial hardships they may face during the period that their pension benefits remain unpaid. In the case of the 1st Petitioner, his pension benefits were already paid and therefore, retention on the payroll did not apply to him. 6.2. The Petitioner retired in as a Lecturer but the as a up position immediately took Chancellor of the Respondent. T his appointment ensured that she continued drawing a salary. She was not retained on the her immediate early retirement due to Deputy Vice her after payroll engagement as Deputy Vice Chancellor. 6.3. The status of the 2°4 Petitioner changed from a pensionable employee to one who was entitled to gratuity at the end of her fall contract. The result is that the Qnd within the scope of Article 189(2) of the Constitution because she suffered no hardships due to her immediate appointment as Deputy Vice Chancellor after her retirement. Petitioner does not Gt. The Petitioners’ final employment contract with the Respondent was on a fixed term basis and not on permanent and pensionable terms. Thus, what is due to the J13 Petitioners based on their last engagement is gratuity and not a pension benefit. 6.5. Section 38(3) (b) (iii) of the HEA does not amount to a pension law and the Petitioners did not show that the gratuity owed to them under their final employment contracts with the Respondent was a pension benefit and that it was provided for under an existing law. At the hearing of the Petition, Counsel for the Respondent augmented the skeleton arguments with the following oral submissions: 7.1 The Petitioners should be treated differently. This is because the 1st Petitioner was already paid his pension and the question that remains is whether he should remain on the payroll simply because he is owed gratuity for the fixed term contracts he served. In respect of the 274 Petitioner, the question to be addressed is whether an employee who voluntarily and willfully changes their employment status from permanent and pensionable to a fixed term contract should be retained on the payroll. J14 7.2 This Court has dealt with the issue of gratuity as to whether it is a pension benefit or not. On the strength of the case of Anderson Mwale and Others v Zambia Open University, gratuity is not a pension benefit unless it is provided for under apension law or any other law. The provision that the Petitioners have relied on for payment of their gratuity as a pension benefit, namely, section 38(3) (b) (iii) of the HEA, does not relate to a public university and has therefore, been misplaced. 7.3 The Latin maxim ejusdem generis, means that a word must be known by the company it keeps. Thus, reference to a pension law speaking to a gratuity as a pension benefit, means that any other law that would be efficacious in terms of retaining an employee who is on a fixed term contract pending payment of the gratuity, must be related to or have some semblance of pension regulations. 7.4 The words ‘promptly’ and ‘regularly’ used in Article 189(2) of the Constitution, when construed using the literal rule of interpretation, are conjunctive and not disjunctive. Further, a gratuity is a one-off payment at the end of an employee’s fixed term contract or where the contract is terminated before its J15 end, it’s pro-rated and paid as a lump sum at once. A gratuity, therefore, cannot be paid regularly and that falls outside of the definition of a pension benefit. 7.5 The Petitioners retired on their own volition and opted to enter into fixed term contracts. Their retirement ended their subscription to the Fund under the LASFA and for that reason, they are precluded from relying on it. 7.6 The FIFO policy is a system and practice that the Respondent has used for several years to pay out terminal benefits and gratuity. This policy arose from negotiations between the Respondent’s management and the recognised trade unions and it does not abrogate the Constitution. When prodded by the Court, Counsel for the Respondent confirmed that the 24 Petitioner is entitled to her pension benefit even after her voluntary change in employment status from a permanent and pensionable contract to contract. Counsel further confirmed that the Respondent owed and a fixed term permanent her under monies Petitioner the contract pensionable contract. Despite this, the Respondent could not retain her on gratuity under her and fixed term J16 the payroll because that would result in her drawing two salaries. The Petitioners’ Reply 9. The Petitioners filed an affidavit in reply on 6% July, 2022, and written skeleton arguments in reply on 9 August, 2022. In the affidavit in reply, the Petitioners deposed that: 9.1 The Respondent is under a constitutional obligation to pay the Petitioners their pension benefits and that financial difficulties cannot be used as a licence to abrogate constitutional provisions. A constitutional obligation cannot be defeated by administrative tools, policy or a cabinet circular or be waived by way of estoppel as suggested by the Respondent. 9.2 The Petitioners’ decision to be added to the list of retirees scheduled for payment of terminal benefits in accordance with the FIFO policy does not take away their constitutional right to be paid pension benefits promptly or be retained on the payroll until full and final payment. 10. In the written skeleton arguments in reply, the Petitioners reiterated that they were entitled to be paid a pension benefit and, where that benefit was not paid, to be retained on the skeleton arguments, payroll. In augmenting the written J17 Counsel for the Petitioners submitted that the Petitioners employment contracts at pages 47-48 and 66 of the record of proceedings, clearly show that the HEA applies to the Petitioners and the Respondent. Consequently, the Respondent cannot not claim that section 38(3) (b)(iii) of the HEA is inapplicable. Facts Not in Dispute ii. From the documentary evidence before this Court and taking into account the parties’ submissions before us, we find that the following facts are not in dispute: 11.1 The 1st Petitioner, served the Respondent under three (03) employment contracts. Firstly, the contract on permanent and pensionable terms. Secondly, the 2016 fixed term five-year contract. Thirdly, the 2021 fixed term five-year contract. 11.2 The 1988 employment contract came to an end on 29% January, 2014, by way of early retirement. The Respondent paid the 1st Petitioner the pension benefits due under the 1988 s S — _ — — a contract on 34 June, 2022. 11.3 The 2016 and 2021 fixed term five-year contracts attracted gratuity upon their cessation. The 2016 fixed term five-year J18 contract ended by effluxion of time. The 2021 fixed term five- year contract was brought to an end by the Respondent on 6th May, 2022. The gratuity accrued under the two fixed term five-year contracts was not paid. 11.4 The 27¢ Petitioner served the Respondent under two (02) employment contracts namely, the contract on permanent and pensionable terms and the 2020 fixed term four-year contract. 11.5. The 1998 employment contract came to an end on 315 January, 2019, by virtue of early retirement. The 2020 fixed term four-year contract ended on 6th May, 2022, at the instance of the Respondent. 11.6. The retirement benefits, terminal benefits and gratuity due to the 274 Petitioner under both her employment contracts have not been paid by the Respondent. Issues for Determination 12. facts that are not in contention and Having outlined the taking into account the submissions by both parties, we wish to state that the main issue for determination is whether or not, on the evidence before us, the Respondent contravened 187 and 189 of the Constitution by removing the Articles J19 Petitioners from the payroll. Flowing from the main issue, is whether or not the terminal benefits in the form of gratuity which the Petitioners are entitled to under their respective fixed term contracts are pension benefits as envisaged by the Constitution. Evaluation and Determination of Issues 13. In determining the issues in this case, it is imperative that we consider Articles 187, 189 and 266 of the Constitution as well as the relevant case law and legal principles in relation to a pension benefit. This Court has had the occasion to interpret these provisions. Article 187(1) of the Constitution confers on an employee, a right to a pension benefit. Article 266 of the Constitution defines a pension benefit as follows: “pension benefit” includes a pension, compensation, gratuity or similar allowance in respect of a person’s service; 14. When faced with a question relating to the kind of terminal benefits that fall within the definition of pension benefit under Article 266 of the Constitution, this Court stated the following in the case of Lubunda Ngala and Jason Chulu v. Anti-Corruption Commission?: J20 benefits -. Our firm view is that it would be wrong to say that all vermuinal the termination or coming to an end of the employment contract, should be considered or interpreted to be the same as a pension benefit.... simply because arise from they 15. The pension benefit contemplated under Article 187(3) of the Constitution is one that is granted by or under an Act of Parliament. To this end, in the case of Anderson Mwale and Others v Zambia Open University! we pronounced that: The plain language of Article 187(3) reveals that the provisions of the Constitution relating to a pension benefit must be read together with relevant 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......... 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. 16. Once a person is due a pension benefit under Article187 of the Constitution and that pension benefit is not paid on that person’s last working day, Article 189 (2) of the Constitution on the payroll provides that, that person based on the last salary received by that person. Accordingly, case of Owen Mayapi and 4 Others v Attorney must be retained the in General‘ this Court opined that: J21 " Phrase "retained on payroll” means that such retirees will The i continue to be paid what they we at the time of their retirement. re getting through . the payroll wy ‘ What we discern from the foregoing authorities is that: Even though the definition of a pension benefit is broad and includes gratuity, not all benefits that accrue at is it Tf. 17.1 Separation that amount to a pension benefit under the Constitution; 17.2 For a pension to qualify as a pension benefit under the Constitution, it must first be provided for under an Act of Parliament; and 17.3 If it is not provided for by an Act of Parliament, then that benefit cannot be categorised as a pension benefit and thus, retention on the payroll cannot be sustained. 18. In order for us to address the issues outlined in the present case, we deem it helpful that we consider the Petitioners’ claims for pension benefits under their permanent and pensionable contracts and their fixed term contracts separately. J22 A. The Petitioners’ Employment Contracts p €rmanent and Pensi ensionable 19. As already Stated, the Petitioners’ initial employment contracts with the Respondent were under permanent and pensionable terms. In respect of the 1st Petitioner, it is common cause that his 1988 contract as a Lecturer on permanent and pensionable terms came to an end on 9th January, 2014, via early retirement. It is undisputed that the 1st Petitioner’s pension benefits arising from the contract were paid on 3 June, 2022. It follows, therefore, that at the time the Petition was filed on 15t June, 2022, no pension benefit was due and thus, no constitutional question could arise in respect of the 1st Petitioner’s 1988 contract. We have arrived at this conclusion on the basis of our decision in the case of Lieutenant Chrispin S. Muchindu v Attorney General.* 20. In regard to the 24 Petitioner’s 1998 contract on permanent and pensionable terms as a Lecturer, it is not in dispute that it ended through early retirement on 31st August, 2020, with effect from 31st January, 2019. The 2"4¢ Petitioner contended that she had a right to the pension benefit accrued under this employment contract and that the Respondent’s failure to pay J23 her he ; Pension benefits on her last working day and to retain Ton the Payroll contravened Articles 187 and 189 of the Constitution, She relied on the LASFA as the Act of Parliament that granted her a pension benefit under her 1998 permanent and pensionable contract. The Respondent on the other hand, argued that the 2nd zi. Petitioner was not paid on her last working day on account of the FIFO policy and that she could not be retained on the payroll because she took up employment as Deputy Vice Chancellor upon her early retirement. Thus, retaining her on the payroll would have resulted in her drawing two salaries simultaneously. a2. The Respondent, however, admitted that the 274 Petitioner contributed to the Fund provided under the LASFA during the duration of her permanent and pensionable contract and that she only stopped contributing and being a member of the Fund when she retired as a Lecturer. Furthermore, the Respondent conceded that it owes the 2"4 Petitioner a pension benefit in the sum of K4,342,039.70. 23. It is our considered view that the fact that the Respondent approved the 2°¢ Petitioners application to go on early J24 a retireme nt as shown on Page 56 of the record of proceedings, ttracts a pension benefit within the provisions of Articles187 ithi and 189 of the Constitution. This view aligns with our decision in the case of Levy Mwale v Zambia National Broadcasting Corporation.? 24. Further, we have carefully reviewed the Local Authorities Superannuation Fund Act Chapter 284 of the Laws of Zambia as amended by the Local Authorities Superannuation Fund (Amendment) Act No. 8 of 2015, and we are satisfied that the said Act is a pension law. This is evidenced by its long title which provides, inter alia, that it’s an Act to provide for the payment of pensions from the Fund. 20. Our position is that once the 2"4 Petitioner retired, her right to pension benefit was triggered and it ought to have been paid in accordance with Articles and of the Constitution irrespective of whether or not she took up employment after retirement with the Respondent or elsewhere. The Respondent’s argument that the 24 Petitioner would have received two salaries if she was retained on the payroll, therefore, has no basis under the Constitution. J25 In light of the foregoing, we find that the 24 Petitioner’s early retirement and her membership to the Fund qualified her for a pension benefit. Since she was not paid her pension benefit in full on her last working day under the 1998 permanent and pensionable contract, it follows that Article 189(2) of the Constitution applies to her and she must be retained on the payroll based on her last salary as a Lecturer. Zi. The outcome in respect of the 2nd Petitioner, therefore, is that the Respondent’s conduct in removing her from the payroll, after she retired early as a Lecturer and before her pension benefits under the permanent and pensionable contract were paid in full, is contrary to Article 189 (2) of the Constitution. B. The Petitioner’s Fixed Term Employment Contacts 28. After their retirement as Lecturers, the Petitioners were employed by the Respondent on fixed term employment contracts. The 1st Petitioner was employed as Vice Chancellor in 2016 for a five-year term and his employment was renewed in 2021 for a further five-year term. The 24 Petitioner’s fixed J26 term contract as Deputy Vice Chancellor was for a four-year period that commenced on 1st March, 2020. 29. The Petitioners submitted that the Respondent owed them terminal benefits in the form, gratuity under their fixed term fp employment contracts. They argued that this gratuity amounted to a pension benefit under Articles 187, 189 and 266 of the Constitution and that the relevant law that grants them the said gratuity is section 38(3)(b)(iii) of the HEA. 30. The Respondent contended that the Petitioners reliance on section 38(3) (b) (iii) of the HEA, was misplaced because that section did not relate to a public university such as the Respondent. In rebuttal, the Petitioners argued that the Petitioners’ employment contracts expressly provided that the HEA applied to the Petitioners and the Respondent. SLs The issue in respect of the Petitioners’ fixed term employment contracts is whether or not the gratuity thereunder qualifies as a pension benefit in terms of Articles 187 and 189 of the Constitution. 32. At this point we wish to mention that in the case of Gilford Malenji v Zambia Airports Corporation® we expressed our views on the kind of gratuity that could be classed asa J27 pension benefit under Articles and of the Constitution. We simply put it that: Therefore, for one to claim gratuity as a pension benefit, it has to be a pension benefit granted to him under a relevant provision of the law. 33. We have examined section 38(3) (b) (iii) of the HEA which is the provision that the Petitioners allege grants them a pension benefit in the form of gratuity under their fixed term contracts. The said section 38(3)(b)(iii) falls under Part VI of the HEA arid has a heading titled: Transformation, Education Institutions. Amalgamation and Closure of Higher a4. Section 38(1) and (2) of the HEA provides for the establishment and declaration of constituent colleges of a public higher education institution at the discretion of the Minister responsible for education, by statutory order. This section, therefore, caters for amalgamations or mergers between public universities and other educational institutions to form constituent colleges. 35. A literal interpretation of section 38(3) of the HEA reveals that it applies to instances where the Minister responsible for education establishes a constituent college by amalgamating J28 or merging an educational institution with a public higher education institution. 36. Upon amalgamation, section 38(3) (b) (iii) of the HEA, empowers the Minister to make provision for the payment of terminal benefits for those employees of the educational institution whose services are not transferred to the public 37. higher education institution. is clear that the terminal benefits envisaged in Thus, it section 38(3)(b){iii) of the HEA relates to the employees of an educational institution that has amalgamated or merged a with a public higher education institution pursuant to statutory order issued by the Minister responsible for education. We note that by virtue of section 2. of the HEA, the Respondent is a public higher education institution and not an educational institution. 38. Section 38(3)(b)(iii) of the HEA therefore, only applies to employees of an education institution that has merged with a public higher education institution such as the Respondent. It is therefore, not applicable to the Petitioners’ service in so far as terminal benefits or pension benefits are J29 concerned because they were employees of a public higher education institution and not an education institution. 39. As a result, section 38(3) (b) (iii) of the HEA does not grant a pension benefit to the Petitioners in their capacity as the Respondent’s Vice Chancellor and Deputy Vice Chancellor, respectively. In any case, there is no evidence that the Respondent amalgamated or merged with a public higher education institution or of a statutory order to that effect. We therefore, agree with the Respondent that the Petitioners misplaced the operation of section 38(3) (b) (iii) of the HEA. There is therefore, no pension law or other law provided by 40. the Petitioners in this case that grants them a pension benefit in the form of gratuity. The result is that the Petitioners have not proved their allegation that the Respondent contravened Articles 187 and 189 of the Constitution in respect of their claim for gratuity under their respective fixed term contracts. The Constitutionality, or lack thereof, of the Respondent’s FIFO Policy and Internal Memorandum 41. The Petitioners contend that the Respondent’s FIFO policy and the internal memorandum on pre-requisites for statutory retirement and retention of employees dated 12% J30 February, 2019, are contrary to Articles 187 and 189 of the Constitution. The Respondent argued that the FIFO policy does not contravene the Constitution. 42. The Respondent’s internal memorandum aforesaid is produced at pages 74 and 7 5 of the record of proceedings. It is, however, illegible making it impossible to discern its 2(a). The clause the impugned particularly contents, Petitioners have not furnished us with a readable copy of the internal memorandum. They have effectively not proved their claim and we therefore, decline to grant the declaration that the Respondent’s internal memorandum is null and void. 43. In respect of the FIFO policy, the bottom line is that every employee that is owed a pension benefit under Article 187 of the Constitution must be retained on the payroll pursuant to Article 189(2) of the Constitution. A retired employee may, therefore, be subjected to the FIFO policy and simultaneously be retained on the payroll while awaiting full payment of his or her payment of pension benefits. 44, In this case, the Respondent’s FIFO policy is unconstitutional only to the extent of its operation in relation to the 2nd Petitioner not being retained on the payroll after her early J31 reti , irement and upon being placed on the queue of retired personnel due to be paid their pension benefits. ORDERS 45. For these reasons, we make the following Orders: 45.1 All of the 1st Petitioner’s claims in the Petition lack merit and we accordingly dismiss them. 45.2 The 24 Petitioners claim for gratuity as a pension benefit under her four-year fixed term contract lacks merit and it is accordingly dismissed. 45.3. We grant the 2" Petitioner’s claim for a declaration that the decision by the Respondent to remove her from the payroll without paying her pension benefits under her permanent and pensionable contract is contrary to Article 189 of the Constitution. 45.4. The 2d Petitioner’s claim for a declaration that the Respondent’s FIFO policy is contrary to the provisions of Articles 187 and 189 of the Constitution is partially successful in so far as it relates to her non retention on the payroll after her early retirement. 45.5 We order the Respondent to pay the 24 Petitioner her salaries for the period her pension benefits remained unpaid in full, J32 based on the last Salary that she received as a Lecturer under the 1998 permanent and pensionable contract. For avoidance of doubt, the 2"4 Petitioner should be paid salary arrears from the time she ought to have been retained on the payroll on 31+ January, 2019 and should continue to be retained on the payroll until her pension benefit is paid in full. 45.6 The salaries due to the 2™4 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. 45.7 Each party to bear their own cost P. MULONDA CONSTITUTIONAL COURT JUDGE M. K. CHISUNKA CONSTITUTIONAL COURT JUDGE J33