CONSTITUTION WATCH 1/2014
[25th January 2014]
Giving Effect to the Constitution
Presidential Powers (Temporary Measures) Act – No Longer Constitutional
Introduction
The Presidential Powers (Temporary Measures) Act was enacted under the old constitution. This Act gave the President plenary power to make whatever regulations he considered necessary to cope with any situation that needed to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest. There were very few limits to these powers.
The old constitution, however, did not emphasise the separation of power between the Executive and Legislature. It also expressly stated without any qualification that Parliament could confer legislative functions on any person or authority.
BUT under the new Constitution, with its emphasis on the separation of powers of the Executive, Legislature and Judiciary, the Presidential Powers Act can no longer be used to promulgate legislation and the Act should in fact be repealed.
Why is the Presidential Powers (Temporary Measures) Act Now Unconstitutional?
Under section 3 of the new Constitution, one of the founding principles of Zimbabwe is good governance, which includes “observance of the principle of separation of powers”. Separation of powers requires the three main branches of government to stick to their individual functions and not to encroach on those of the other branches. Hence:
- · The function of the Legislature, i.e. Parliament, is to enact laws and it should not try to implement the laws or set itself up as a judge of their validity.
- · The Judiciary, i.e. the courts, have the function of deciding disputes, including disputes over the validity of laws, and judicial officers should not enact laws or try to implement them.
- · The function of the Executive, i.e. the President and his Ministers, is to implement laws and they should not adjudicate disputes or enact laws.
Giving the President sweeping power to enact regulations on anything which can be covered by an Act of Parliament is a clear violation of the principle of separation of powers, even if the President’s regulations can be revoked by Parliament and expire after six months.
Section 134 of the new Constitution allows Parliament to delegate power to make statutory instruments such as regulations but, unlike the old constitution, the section places severe restrictions on any such delegation:
- · Parliament’s primary law-making power must not be delegated;
- · The Act under which the delegation is made must specify the limits of the power to make statutory instruments, as well as the nature and scope of the instruments and the principles and standards applicable to them.
The Presidential Powers (Temporary Measures) Act does delegate primary law-making power to the President and fails to specify the nature and scope of regulations that may be made under the Act or the principles and standards applicable to them.
For these reasons:
- · The Act is unconstitutional and therefore invalid by virtue of section 2(1) of the Constitution.
- · The Act has not been preserved as an existing law by paragraph 10 of the Sixth Schedule to the constitution because existing laws, if they are to remain in force, must be construed in conformity with the Constitution and it is impossible to construe the Act in that way.
Recent Use of Presidential Powers Act
Earlier this month, on 3rd January 2014, three sets of regulations were gazetted under the Presidential Powers (Temporary Measures) Act:
- · Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act [Chapter 9:24]) Regulations, 2014 [SI 2/2014]
- · Presidential Powers (Temporary Measures) (Amendment of Criminal Law (Codification and Reform Act [Chapter 9:23] [SI 3/2014] [Note: this purported to create “piracy on the high seas” an offence in Zimbabwean Law – this amendment was not in fact necessary as piracy was already an offence under our common law.]
- · Presidential Powers (Temporary Measures) (Trafficking in Persons Act) Regulations, 2014 [SI 4/2014] [Note: this was demanded of us because of the relationship of human trafficking with money laundering and the financing of terrorism.]
These regulations were intended to bring our law into line with international standards imposed by the Financial Action Task Force, the international body responsible for setting and enforcing standards against money laundering and financing of terrorism Amendments to our law were needed urgently because without them the Financial Action Task Force could place an international embargo on our financial system This would deny international recognition of our financial system – and thus prevent us from accessing international funding.
Are the regulations valid?
Quite obviously, if the Presidential Powers (Temporary Measures) Act is invalid, the three sets of regulations above are also invalid, and our law relating to money-laundering and financing terrorism is in the same unsatisfactory state it was in before they were published.
Remedial Action
The necessity of bringing us into line with international financing is of great importance to the country. Parliament is now sitting and it should be possible to expedite the preparation of Bills to make the necessary amendments to the money-laundering law and to introduce the Bills in the National Assembly without delay. This would achieve the desired outcome and also conform with our new Constitution.
The country has spent many years working on the new Constitution and we need now to have a culture of respect for the Constitution. This will not be achieved if we flout it by continuing to use the Presidential Powers Act, which violates some of the basic principles of the Constitution.
If, in addition to introducing as a matter of urgency the statutes necessary to satisfy the Financial Action Task Force the constitutional way – i.e. through Parliament, the government were also to introduce a Bill repealing the Presidential Powers (Temporary Measures) Act, it would demonstrate its respect for constitutionalism and its desire to bring our laws into line with the new Constitution.
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