Working women have an unrestricted right to fully-paid maternity leave of at least three months and the law that only gives them a maximum of three periods of maternity with one employer must be struck down as unconstitutional.
In the heads of argument filed at the Constitutional Court by Harare lawyer Mr Caleb Mucheche on behalf of his client Ms Emelda Mhuriro this week, it was also argued that the law that denies newly-employed women of less than one year service from enjoying the right to paid maternity leave must also be deleted from the books of law.
She said Section 65(7) of the Constitution of Zimbabwe guaranteed unlimited right to maternity leave to all female employees, but Section 18(1) and (3) of the Labour Act and Section 39(1), (3) and (4) of the Public Service Regulations, Statutory Instrument 1 of 2000 set conditions for the enjoyment of the right, thereby discriminating against newly employed women.
Section 65(7) of the Constitution reads:
"Women employees have a right to fully-paid maternity leave for a period of at least three months."
To that end, Ms Mhuriro, on behalf of the civil servants and other employees at large, argued that the laws were unconstitutional and that they should be struck off the statutes.
In the recently-filed heads of argument, Mr Mucheche said Section 18(1) of the Labour Act denies newly-employed women the right to maternity leave.
"This means that a female employee who has not served for at least one year is not entitled to any fully-paid maternity leave, let alone the maternity leave itself as a right.
"Clearly Section 18(1) of the Labour Act is ultra-vires Sections 65(7) of the Constitution of Zimbabwe and runs foul to section 2(1) of the Constitution of Zimbabwe," argued Mr Mucheche.
He added that Section 18(3) of the Labour Act which puts a cap on the number of times a female employee can go on maternity leave was also unconstitutional.
The Ministers of Public Service, Labour and Social Welfare; Justice, Legal and Parliamentary Affairs; Women's Affairs, Gender and Community Development and the Attorney-General were listed as respondents in their official capacities.
Ms Mhuriro, in her founding affidavit, argues that Section 18(1) and (3) of the Labour Act violates women employees' rights in general -- the right to fully-paid maternity leave, while sections of the Public Service Regulations SI 1 of 2000 violates the right of female civil servants to maternity leave.
Ms Mhuriro argued that the limitations to the right to maternity leave occasioned by the labour laws was discriminatory in nature.
It is her argument that the alleged violations of the right to maternity leave was contrary to the International Labour Organisation's conventions on maternity leave and rights of women/female employees, and the international law on the protection of women's rights.
She further argued that the said violation was not reasonably justified in a democratic society.