The Flexibility of the Labour Market in Sub-Saharan Africa: Francophone Countries, South Africa and Mozambique, Comparative Remarks

Background paper to the ERD 2010

Authors

Guido Boni, Royal Holloway, University of London

Workshop/conference

Paper prepared in the framework of the European Report on Development 2010.

Abstract

In order to fully assess the functioning of a social security system it is necessary to address it from a variety of points of view. As per the legal one, the two main formants are statute law and case-law. Depending on the historical development of the country concerned, statutory law is more relevant than case-law in civil law countries, while the opposite holds normally true for common law countries.

The present analysis focuses on the main legal sources regulating the labour market in a sample of Sub-Saharan African countries: South Africa, Mozambique, and the draft OHADA harmonised Labour Code which once adopted will apply to 16 francophone countries. Statute law rather than case-law appears to be the most important source for labour law, with South Africa being the only one relying more on case law due its links with the British Empire, but heavily legislated.

In terms of legal analysis, first of all Constitutions are taken into account as they set the fundamental principles on which a country is grounded, and very often reference is made to basic rights relating to the workers (equality, dignity, nondiscrimination, protection against disability, right to work, etc.). Secondly, relevant statute law is examined, as it provides a more detailed picture of the rights and duties of the parties of an employment relationship thus contributing to the understanding of the functioning of the labour market, at least from a prescriptive point of view. The analysis of the existing law is carried out taking into account the scientific writings of labour law scholars, and, whenever possible – due to difficult access to judicial repositories in developing countries – to recent case-law decisions affecting the topic analysed.

Existing Mozambique and South African laws are scrutinised, while a critical analysis of the draft OHADA Labour Code for francophone Africa is performed in order to assess its possible success once adopted by the 16 Sub-Saharan African countries member of OHADA. It represents one of the most advanced contemporary example of a combined effort to systematise organically different national laws into one corpus of norms which will bind equally all the countries concerned.

The study terminates with a critical assessment of legal transplants from former European colonies of their own legal systems into the Sub-Saharan continent and it provides a useful insight of the functioning of the labour market in the selected countries for the benefit of the ERD 2010 in so far as access to numerous social security benefits is conditional upon being into formal employment. Since statistics show that only a tiny minority of workers in SSA fall within the scope of labour law, the principal finding of the research is that there is an urgent the need to rethink the way labour law, as a Western product, is applied in developing countries in order for it to be an efficient dispenser of social security access. Quite on the contrary, it emerges that labour law is instead a tool imposed on developing countries for the benefit of Western countries’ businesses.

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