Tuesday, December 25, 2012

(DAILY MAIL ZM) ‘Constitution should address terminal benefits’

‘Constitution should address terminal benefits’

Improper use of terminal benefits has left many families in abject poverty, with children turning to streets to beg for survival. Improper use of terminal benefits has left many families in abject poverty, with children turning to streets to beg for survival.

“ Father! I am requesting for a one hundred kwacha so that I buy a packet of roasted groundnuts…yesterday I slept on an empty belly,’’ begs Edwin Hamanjanji , a 10-year-old double-orphan, who has been eking a living on the streets of Lusaka.

Hamanjanji has become a somewhat permanent feature at one of the traffic lights where he sometimes receives hand-outs in the form of food and money.

Begging is some form of business and it comes in a pair of good and bad days. On what he describes as “chayuma”, meaning bad days, the boy retires to a tunnel that serves as his home, where he gulps water to suppress the hunger pangs.

Hamanjanji’s father worked as a civil servant and at the time of his demise, he had over 19 years of consistent service and was only remaining with 10 days to clock 20 years required for one to qualify for posthumous retirement.

Edwin was abandoned by his circle of relatives after the administrator exhausted the benefits on building a house in one of the compounds of Lusaka.

However, the death benefits accrued by Edwin’s late father were not adequate to complete the house which is now on hold and has become a white elephant project.

There are so many Hamanjanjis in every stratum of society in this country and part of their suffering stems from inadequate death benefits paid following deaths of their parents. It is for such reasons that many affected families, cutting across different sections of the country, have been sowing seeds of discontent with regard to the pension laws in the country.

The payment of terminal and death benefits for people employed in the public service in the country is governed by the Public Service Pensions Act number 35 of 1996.

The Act also provides for the establishment of the Public Service Pensions Fund which administers the payment of retirement, pension and death benefits to eligible members and beneficiaries.

In determining death benefits for members of the Public Service Pension Fund, who have served between 10 and 20 years, Section 44 provides that a special death gratuity equivalent to the deceased officer’s last annual salary is paid to his or her family. The Act also provides for monthly pension for the surviving spouse and children under the age of 18 years.

Section 44 of the Public Service Pensions Act provides as follows: “Subject to the provisions of Part X of the Act, a gratuity shall be paid in respect of an officer who dies, and whose death, in the opinion of the appropriate authority, was not caused by any wrongful act or omission on the part of such officer in discharging the officer’s official duties. A gratuity payable under this section shall be equal to the officer’s annual pensionable emoluments at the date of the officer’s death.”

This roughly implies that if, for instance, at the time of his death, Edwin’s father was getting a monthly salary of one million two hundred thousand kwacha (K1, 200,000.00), all the beneficiaries of the estate were entitled to share a lifetime special gratuity amounting to fourteen million four hundred thousand kwacha (K14, 400,000.00).
Since Hamanjanji Senior died intestate or without leaving a “Will”, his estate was subjected to the Intestate Succession Act which provides shares to each category of beneficiaries.

Some people argue that such benefits, which are a far cry from the economic reality, have contributed to heart-rending poverty experienced by many surviving beneficiaries.

With the demand for a constitution that caters for the needs and interest of the people, the solution to such distressing situations seems to lie in the on-going constitution-making process being undertaken by the Technical Committee on Drafting the Zambian Constitution chaired by Honourable Mr. Justice Annel M. Silungwe.
The Terms of Reference of the Technical Committee include, interalia, consulting widely the people of Zambia in coming up with a people-driven Constitution. As part of such consultation, the Technical Committee is facilitating a formal consultative process that started with the holding of District Constitution Consultative Fora, comprising over 80 districts throughout the country.

These fora graduated into the Provincial Constitution Conventions. During the just-ended Constitution Convention for the Central Province that was recently held in Kabwe, from 3 to 8 December, 2012, the formula for determining the death benefits for civil servants who die in service before serving twenty years ignited a hot debate among delegates from all the districts in Central Province.

Contributing to the heated debate, Elias Ntimpa, a delegate representing the Zambia Congress of Trade Unions (ZCTU), argued that there was need to cut back on the threshold of years that entitles the remaining beneficiaries to the posthumous retirement package.

“The death rate among employees who have not served for 20 years is high in the public service and in many cases their families are wallowing in abject poverty. This, therefore, calls for the need to reduce this threshold to 15 years or less,” Mr Ntimpa told the convention that was well-attended and represented.

At the end of the debate, the delegates resolved that Article 252 of the first draft Constitution be amended to provide for payment of pension for the deceased in the public service on a pro-rata basis.

In other words, if this resolution is adopted at the national and sector-groups convention and by the Technical Committee in the preparation of the final draft Constitution, the new Constitution would see a surviving spouse, children and other beneficiaries getting death benefits in proportion to the number of years that the deceased member served in the public service.

On Article 254 (2) of the first draft Constitution, which, among others, provides that a retiree or retrenchee who has not received his or her benefits shall be retained on the payroll until such money is paid out, was applauded by delegates on the ground that this provision would upgrade the living standards of retirees if adopted.

However, delegates to the convention expressed fear that, without proper legal legislation to implement this provision, employers may abuse it by deducting salaries paid to such former employees from their final terminal benefits.

To this effect, the delegates resolved to amend this provision to include that “ salaries received during the period a retired officer is on payroll waiting for retirement benefits shall not be deducted from the officer’s pension,’’ the chairperson of the Central Province Constitution Convention, Mr Kabesha Mulilo, announced the resolution.

On the same Article 254, which provides in part that any instalments of pension benefits shall be paid regularly, and be easily accessible to pensioners, delegates resolved to replace the underlined word with monthly for consistency in the payment of such benefits.

The retirement age, which is under Article 251 of the first draft Constitution, attracted protracted debate with those in support of the upward adjustment of the retirement age to 60 contending, among others, that increasing the retirement age might serve as institutional memory.

Debating on the motion to either retain Article 251 as reflected in the first draft Constitution, Beatrice Kamala said with the unprecedented levels of unemployment among the youths in the country, the retirement age for employees in the public sector must remain at 55 years in order to give employment opportunities to the youths.

After much debate, the convention finally resolved to leave the retirement age at 55 years.

Articles that attracted amendments at the convention include Article 96 (8) of the first draft Constitution which provides for the restoration of immunity of a person who held the office of President and has been acquitted of an offence.

Delegates resolved that the clause in question be amended to provide for the restoration of such immunity within 14 days after acquittal of a former republican President and that it should introduce a provision to bar the republican President from suing others while enjoying immunity.

Conversely, among the articles that were retained as contained in the first draft Constitution by the Central Province Constitution Convention include the barring of chiefs from active participation in partisan politics; the fifty-plus-one vote presidential election threshold; Vice-President as a running mate, dual citizenship; the appointment of Cabinet ministers from outside Parliament and death penalty.

Below are some reactions of the delegates with respect to the deliberations at the Constitution Convention for Central Province:
United Party for National Development (UPND) member of Parliament for Nangoma Constituency in Mumbwa District, Boyd Hamusonde, described it as an educative and informative convention while Ing’utu Chama, a delegate from Serenje district, said that it was participatory and that the adopted resolution reflected the wishes of the people of that province.

Other notable delegates to the convention included Chief Chibale of Serenje; Chief Liteta of Chibombo; Chief Shakumbila of Mumbwa district and the deputy permanent secretary for Central Province, Ronald Sinyangwe.

The resolutions on the first draft Constitution from Kabwe entail that Central is among the three provinces that have booked places to the last tier of the formal consultative process, the national and sector-groups convention.

In closing the Central Province Constitution Convention in Kabwe, the conventions coordinator of the Technical Committee on Drafting the Zambian Constitution, Mr Reuben Lifuka, described the convention as a success and that the remaining seven conventions in other provinces will follow in January 2013.

The author is a member of the Secretariat of the Technical Committee on Drafting the Zambian Constitution



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