THE Mine Contractors, Factors and Allied Workers Union and the National Union of Technical Lecturers have lodged a complaint against Zambia Congress of Trade Unions secretary general Cosmas Mukuka in the Lusaka High Court’s industrial division over his continued stay in office after being retired in national interest.
The complainants are seeking an order that Mukuka is not qualified to be a general secretary of ZCTU.
According to the notice of complaint by Levi Chimfwembe, a general secretary of the Mine Contractors, Factories and Allied Workers Union and Chikaiko Phiri, general secretary of the National Union of Technical Lecturers and Allied Workers, Mukuka is both the secretary general of ZCTU and holds a trustee position in the Basic Education Teachers Union of Zambia.
They said Article 8 and 19 of the BETUZ constitution provides that a person [is] disqualified from holding office in BETUZ upon losing employment with a substantive employer and as such Mukuka lost his trustee position in BETUZ by operation of the law following his retirement in national interest and in the civil service.
“Pursuant to Article 14(8)(d) of the constitution of the Zambia Congress Trade Union, a person holding a position in ZCTU shall relinquish his person upon losing a position in an affiliate union,”Chimfwembe and Phiri said.
“The responded (Mukuka) is no longer qualified to hold the position of secretary general in the Zambia Congress of Trade Unions as a result of him losing a position in an affiliate union (BETUZ) as per the provisions of Article 14(8)(d) of the constitution of ZCTU.”
They further stated that Mukuka’s employment was terminated by way of retirement in national interest on May 5, 2020 therefore he cannot continue to hold the position of general secretary in the ZCTU.
In an affidavit in support of notice of complaint sworn by Chimfwembe, the labour commissioner confirmed that Mukuka, by virtue of his retirement in national interest, can no longer qualify to hold a position in the congress.
He said despite the calls that he steps down, Mukuka has neglected or refused to vacate the position of ZCTU secretary general and as such was in breach of both the internal regulations of all unions involved and the Zambian laws couched in mandatory terms.
Chimfwembe contended that unless restrained, Mukuka would continue superintending over matters of ZCTU in a way that would be disadvantageous to the union.
He further claimed that Mukuka was committing an illegal act by remaining in office even after the termination of his employment.
The complainants further want an order of interim injunction restraining Mukuka by his servants, agents or whomsoever from authorising documents, giving instructions approving payments and other matters connected to or incidental to the operations of ZCTU pending determination of the matter.
They also want an order that Mukuka surrenders the keys and all documents connected to or incidental to the operations of ZCTU, any other relief the court may deem fit and costs of the action.
But in an affidavit in opposition to affidavit in support of ex-parte summons for an order of interim injunction as well as in support of notice of motion to raise preliminary issue, Mukuka urged the court not to grant the complainants an order of interim injunction restraining him from performing his duties as secretary general of ZCTU.
He said the complainants had deliberately, with intent to mislead the court, failed or neglected or refused to fully disclose that the labour Commissioner, in line with the letter dated July 15, 2020 from the Attorney General, rescinded his earlier position and confirmed to ZCTU president in writing that he was eligible to continue holding office as secretary general.
Mukuka said the complainants have not exhausted the internal and administrative procedures under the ZCTU which include, referring the matter to the general council which was the next constitutional body of ZCTU.
Mukuka said that complainants have not disclosed that on August 11, 2020, the executive committee of ZCTU held an extraordinary meeting which unanimously voted and resolved that he is legally entitled to continue holding office as secretary general with the complainants being the only two members who dissented out of a total of 43 votes.
He further stated that if the complainants were aggrieved with the decision of the executive committee, they were advised to take the matter to the next constitutional organ, which is the general council (biennial conference) slated for December 2020.
Mukuka said apart from exercising their right of appeal to the general council, it was recommended that the complainants appear before the conciliation and demarcation committee to be heard.
“The complainants in a ploy to hound myself out from my position instigated the convening of an extraordinary meeting and fraudulently obtained several signatures from general secretaries of affiliates of ZCTU,” Mukuka said.
He said a number of affiliate secretaries general of ZCTU, including Copperbelt University Senior Administrative Professional and Technical Staff Union expressed their discontent upon discovering that the real or actual intention of obtaining their signatures was not meant for their show of solidarity to him in his position.
Mukuka added that if the application by the complainants for an order of interim injunction is given, ZCTU would suffer irreparable loss, damage and would be greatly prejudiced as the status quo would not be maintained as ZCTU’s unanimous decision to have him continue in office legally as secretary general would invariably be altered and ruined.
He further stated that the matter was irregularly and improperly before court because the complainants have not exhausted the available internal administrative procedures and constitutional mechanisms for them to air their grievances and that their court action was prematurely before court.
“The court has no jurisdiction to entertain the hearing of the complainants’ ex-parte application for an order of interim injunction and to grant the reliefs sought by the complainants, when their matter is irregularly and improperly before this court,” said Mukuka.