Parliament yesterday blocked the recent increases in the standard scale of maximum fines for each level after the Parliamentary Legal Committee found the statutory instrument setting the fines defective in not stating which minister made the regulations and without first tabling the proposed levels in Parliament as required.
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi conceded the adverse report and agreed that the statutory instrument must be withdrawn. He pledged to redo it properly and in a manner envisaged by the Constitution.
The new fines enacted under Statutory Instrument 25 of 2021 saw the lowest maximum fine at Level One set at $1 000 up from $200 while the maximum fine under Level 14 was set at $1,6 million up from $800 000.
Yesterday, the National Assembly was unanimous in adopting an adverse report on this statutory instrument that was tabled by Parliament Legal Committee chaired by Mudzi South MP Cde Jonathan Samkange (Zanu PF).
The committee is an arm of Parliament that scrutinises all laws and Statutory Instruments that come before Parliament to ascertain whether they are consistent with the Constitution.
In tabling its adverse report PLC chairperson Cde Samkange said the preamble of the statutory instrument does not specify which Minister had issued the regulations between the Minister of Justice, Legal and Parliamentary Affairs or Minister of Finance and Economic Development. Both were empowered to do so.
He said that omission made its enactment fatally defective at law rendering it unconstitutional.
He said while the law allowed both Ministers to enact standard scale of fines they should do that under different circumstances.
While an assumption could be made that it was Minister of Justice, Legal and Parliamentary Affairs who enacted given that it was done in terms of Criminal Law (Codification and Reform) Act that was not enough to make such promulgation lawful.
He said the second reason that made the enactment unconstitutional was that the law provided that a draft of scale of fines should be tabled first in Parliament.
“In this instance no draft of standard of fines was tabled. It is therefore the Committee’s opinion that Statutory Instrument 25 of 2021 is ultra vires the enabling Act and therefore unconstitutional,” said Cde Samkange.
In response ,Minister Ziyambi agreed to have the proposed law on new fines withdrawn saying he will ensure that the proper procedure will be followed as envisaged by the Constitution.
The new fines represented roughly doubling of maximum fines as the Government sought to keep abreast with inflationary trends. Offences in Level one are minor and can be administered at a police station through admission of guilt fines while serious Offences in Level 4 up to Level 14 will be taken before the courts.
Lawyer Mr Obert Gutu said: “A well-grounded principle of statutory interpretation provides that the repeal of a legislative provision does not operate retrospectively.
“The reversed fines were promulgated by a statutory instrument that has since been repealed or reversed. Unfortunately, those people who had already paid these exorbitant fines under the repealed SI are legally not in a position to claim refunds.
“The Parliamentary Legal Committee is the Parliamentary watchdog against the promulgation of illegal and/or unconstitutional Bills and Statutory Instruments.
“However, it would be extremely interesting for our constitutional jurisprudence if any aggrieved person might want to take this matter up with the Constitutional Court.”