BILL WATCH 15/2014
[19th March 2014]
The National Assembly is Sitting This Week
The Senate will not sit again until Tuesday 25th March
Reports from Parliamentary Legal Committee on Statutory Instruments
Under section 152 of the Constitution the Parliamentary Legal Committee [PLC] must examine every statutory instrument published in the Government Gazette and report to Parliament whether it considers any provision in the statutory instrument:
- · contravenes the Constitution, or
- · is ultra vires the enabling Act of Parliament [i.e. whether the authority making the statutory instrument has gone “beyond the powers” conferred on him/her/it by the Act of Parliament under which the statutory instrument is made].
A PLC report is termed either:
- · “adverse”, when the PLC reports a statutory instrument as contravening the Constitution or as being ultra vires the enabling Act [or as containing features deemed reportable by Standing Orders that widen the PLC’s mandate], or
- · “non-adverse” when the PLC has discerned no such faults and reports accordingly.
Adverse Reports on Two Statutory Instruments
On 5th March, the presiding officers of both Houses announced receipt of the Parliamentary Legal Committee’s adverse reports on two statutory instruments gazetted last year [copies of both reports are available from the addresses given at the end of this bulletin]:
Postal and Telecommunications (Subscriber Registration) Regulations [SI 142/2013]
The PLC conclusion is that the regulations are unconstitutional for potential infringements of sections 57 [right to privacy] and 61 [freedom of expression] of the Constitution. Its recommendations suggest that the regulations should be amended to bring them into line with the Constitution, in particular by guaranteeing judicial oversight over access to subscriber data bases. It also highlights Zimbabwe’s need for a comprehensive data protection law. [See Bill Watch 49/2013 of 7th October 2013 for an analysis of the regulations and a brief note on their constitutionality.]
Note on what must happen now: The delivery of this report has activated the procedure laid down by paragraph 9 of the Fifth Schedule to the Constitution. It is now open to either the Senate or the National Assembly to pass a resolution resolving that the regulations do contravene the Constitution, as the PLC has reported. This is or should be essentially a legal rather than a political decision.
If a resolution affirming a contravention of the Constitution is passed, the Clerk of Parliament must report the resolution to the authority responsible for the regulations [the President has assigned responsibility for the enabling Act to both the Office of the President and Cabinet and the Minister of Information Communication Technology, Postal and Courier Services – see SIs 19/2014 and 25/2014]. The responsible authority must then, within 21 days of notification, either:
- · repeal the regulations, or
- · apply to the Constitutional Court for a declaration that the regulations are in accordance with the Constitution. If an application to the Constitutional Court is made, the regulations are automatically suspended pending the court’s decision [paragraph 9(3) of the Fifth Schedule to the Constitution].
Comment: Under the previous Constitution, more often than not, the Government managed to avoid or delay prompt action on adverse reports endorsed by the Senate. It remains to be seen whether this new procedure proves more effective in practice than the looser provisions of the previous Constitution about the consequences of an adverse report from the PLC on a statutory instrument. In principle, if the PLC’s reasoning is legally sound, and if the Senate or the National Assembly agrees with the PLC, the result should be an early repeal of these regulations by the responsible authority or a decision by the Constitutional Court refusing to declare them constitutional, which would result in the regulations being set aside.
Deposit Protection Corporation Regulations [SI 156/2013]
The report does not suggest that the regulations contravene either the Constitution or the enabling Act, which is the Deposit Protection Corporation Act. But, applying the PLC’s mandate under Standing Order 201 to “call for the correction or any error or omission in any statutory instrument”, the report calls for the amendment of two provisions – section 15(2)(a) [which the PLC says is unnecessary, because it is already covered by a provision in the Bank Use Promotion Act] and section 34 [which the PLC says is meaningless and should be removed].
Note: This report did not activate the procedure laid down by paragraph 9 of the Fifth Schedule to the Constitution. The responsible authority must, however, treat the PLC’s opinion with due respect.
Consideration of reports in the Senate
Both adverse reports are listed to be considered by the Senate when it resumes sitting on Tuesday 25th March. According to Standing Orders, an adverse report must first be considered in committee of the whole Senate, and it is for the chairperson of the PLC, or a PLC member, to present the report and explain the reasoning behind its conclusion. Only after that will resolutions be put to the Senate for a vote.
Non-Adverse Reports on Presidential Powers Regulations
Also on 5th March the presiding officers of both Houses announced receipt from the Parliamentary Legal Committee [PLC] of a non-adverse report on all statutory instruments [SIs] gazetted during December 2013 and January 2014. This means that the PLC saw nothing unconstitutional in the three sets of regulations gazetted by the President in early January under the Presidential Powers (Temporary Measures) Act – or, presumably, the Act itself. [See Constitution Watch 1/2014 of 25th January for the view that the Act became unconstitutional as soon as the Constitution came fully into operation on 22nd August 2013, and that regulations promulgated under it after that date are therefore invalid.]
The regulations in question are:
· Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act) Regulations, 2014 [SI 2/2014]
· Presidential Powers (Temporary Measures) (Amendment of Criminal Law (Codification and Reform) Act) Regulations, 2014 [SI 3/2014]
- · Presidential Powers (Temporary Measures) (Trafficking in Persons) Regulations [SI 4/2014].
Statutory Instruments Gazetted 7th and 14th March 2014
[not presently available from Veritas]
Occupation of resettlement land under permit SI 53/2014 of 14th March contains the Agricultural Land Settlement (Permit Terms and Conditions) Regulations, 2014, made by the Minister of Lands and Rural Resettlement [“the Minister”] under the Agricultural Land Settlement Act. These important regulations provide for a system of tenure of resettlement land under permits issued by the Minister. The model permit form set out in the Schedule to the SI explains that it applies to land compulsorily acquired by the State under section 16B of the previous Constitution and is still vested in the State, particularly land allocated under the A1 Model Scheme.
Permits will be of indefinite duration, but subject to “cancellation” by the Minister for breach of the conditions attached to them or to “termination”, also by the Minister, for purposes recognised by the Constitution as justifying compulsory acquisition. A permit-holder may occupy, hold and use the land for agricultural and pastoral purposes, and, incidentally to those purposes, for personal residential purposes. He or she will not have title to the land [so may not sell it] but may use his or her interest in the land as security – section 7 of the regulations says a permit holder will have the right, if the Minister consents, to cede, assign, hypothecate, sublet, etc. the allocated land to someone else. Comprehensive provision is made for a permit holder’s spouse or spouses to have equal joint and undivided shares in the land. A fuller assessment of the regulations is not possible in this bulletin. They need urgent study by interested parties.
Customs duty There are four SIs: SI 49/2014 [SADC region suspensions, backdated to the beginning of the year]; SI 50/2014 [tariff amendments, also backdated to the beginning of the year]; SI 51/2014 [suspensions for four specified mining companies]; SI 54/2014 [rebate for engine spares and components for Air Zimbabwe].
Collective bargaining agreements SI 48/2014 [insurance industry wages for the first quarter of 2014]; SI 52/2014 [insurance industry code of conduct and grievance handling procedure]; SI 55/2014 [Harare Municipal Undertaking – salary increment for grades 16-5 effective for the whole of 2013].
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