Statutory instruments spawn legal crisis

Source: Statutory instruments spawn legal crisis | Theindependent (Zimbabwe)

Melody Chikono

ZIMBABWE’S executive arm of government promulgated a whopping 300 Statutory Instruments (SIs) in 2020 and, in the process, violated laid down procedures in a significant number of these subsidiary laws.

This emerged from investigations conducted by The Zimbabwe Independent, in collaboration with Information for Development Trust, a non-profit organisation helping the media to probe corruption and bad governance.

Executive bumper

Our research discovered that Zimbabwe has made in excess of 10 725 statutory instruments since independence in 1980, translating to an annual average of 268 over 40 years.

Records show that, between 2018 and 2020 — the period following the current administration’s army-assisted power takeover from the late Robert Mugabe — the executive flipped 849 SIs, recording a yearly average of 283.

The high volume of the SIs produced in just one year betrays the executive’s appetite to abuse the Presidential Powers (Temporary Measures) Act by routinely by-passing Parliament as the primary legislative platform of the State, legal experts say.

The Act empowers the president to decree regulations to deal with emerging situations, mostly urgent ones.

The judiciary, too, can play a part in law-making through judgments, for instance, but Parliament is vested with the primary powers to legislate.

Snoozing parliament

Since Zimbabwe adopted a new Constitution in 2013, there are numerous statutes that still need to be revised or introduced to align with the supreme law as Parliament struggles to meet and promulgate new laws, handing the executive the almost unchecked opportunity to make legislation.

According to Section 34 of the Constitution, Parliament has the key responsibility of making laws but it was not consulted by the executive when it produced numerous SIs that were gazetted in 2020, blurring the roles of the executive and the National Assembly in the process.

Statutory instruments become a legal force once they are gazetted and tabled in the National Assembly in accordance with standing orders, and must be subjected to scrutiny by the Parliamentary Legal Committee (PLC).

Kucaca Phulu, a member of the PLC, has condemned in an article, The Weaponisation of the Coronavirus Crisis in Zimbabwe: Legal and Extra-legal Instruments, the gazetting of SIs without prior consultation with the legislature.

“None of these Statutory Instruments were presented to Parliament before becoming effective and yet they give wide powers to the executive arm of the State to execute a fight against the coronavirus.

“While, there is no doubt that some of these powers are necessary to deal with the virus and mirror those adopted in democratic jurisdictions, the problem is that their use is not restrained by the checks and balances that should be offered by Parliament,” read part of the article.

The parliamentary standing orders give the legal committee 26 days within which to report to Parliament on issues arising from a particular SI, in line with the provisions of the fifth schedule of the Constitution.

The PLC must be involved in the passing of all subsidiary laws but that has not always been the case.

A prescriptive Clerk of Parliament, Kennedy Chokuda said: “All Statutory Instruments are looked at by the Parliamentary Legal Committee after they are gazetted.”

It emerged, though, that the PLC deliberated on only two of the 300 SIs and the reasons for that neglect could not be immediately established.

Rapped

Chitungwiza South lawmaker and PLC member, Maxwell Mavhunga also rapped the manner in which the executive was making SIs.

“What we have seen is that most statutory instruments become law once they are gazetted. This creates problems because most of these laws are ultra-vires the Constitution or the enabling act. Under normal circumstances, those SIs should be scrutinised by the legal committee (first),” he said.

Cabinet ministers have been accused of overstepping their jurisdiction in the amending of Acts of Parliament through the SIs.

According to the Constitution, SIs must not infringe on or limit any of the rights and freedoms set out in the Declaration of Rights.

There have numerous efforts to challenge some of the dubious SIs even before the 2020 subsidiary laws.

In 2019, a court application (HC 9723/18) by the executive director of the Combined Harare Residents Association, Mfundo Mlilo, challenged SI 205 of 2018, which compelled every individual to pay 2% tax on electronic transactions.

Justice Happias Zhou challenged the constitutionality of the SI and ruled that the Finance minister Mthuli Ncube had no power to amend an Act of Parliament.Executive Director  for Zimbabwe lawyers for Human Rights Roselyn Hanzi said  the problem with  the SI was the abuse of  separation of power as  the executive was taking away the law making role of Parliament, in most cases serving  partisan interest rather that that doing it for the country.

“But if you look at the constitution again, whilst  Parliament is supposed to be making the laws, there is also  a component of the subsidiary laws that can be made by the executive  because we can’t wait for everything to go through parliament. However it should be done under certain circumstances and shouldn’t be open to abuse like what is happening  now,” she said

“If you look  at these SIs, most times they are done in a hurry and there is no consultation  which  is what Parliament would  do if coming up with laws. In this case we have the executive coming up with their own laws, which in most cases are unconstitutional, that is undesirable. It should be used sparingly by the executive. It erodes   the values of separation of power in the constitution.”

Hanzi said it was certain that other countries did not serve partisan interests by making laws as was happening in Zimbabwe.

Another legal expert Jacqueline Chikakano said while the executive has the constitutional powers in terms of section 134 to issue Sis, the extent and purpose should be detailed within the primary law.

“So it is well within the powers of Ministers for example to make statutory instruments  for purposes of providing detail and specificities at any given time that are in line with the broad policy framework outlined in the primary law.

“However there are aspects of note regarding the making of SIs which should be borne in mind when considering how SIs are passed in Zimbabwe; they should be within the scope of and for purposes outlined in the Act. They should not infringe or limit rights. The Act must clearly specify the limits of the power the nature and the scope of the SI and the applicable principles.

“The SI must be laid before Parliament for Scrutiny by the Parliamentary legal committee.”

Chikakano said emergencies such as the current Covid-19 crisis have created a situation where the criteria stated in the Constitution may not be followed to the tee.

“With everyone panicking…, I think that the situation has possibly been taken advantage of…

“In a situation where some of the SIs are passed when Parliament is not in session and in no position to play its oversight role, there is much risk of some SIs continuing in force despite their harmful effects,” she said.

“By the time they are challenged or their lack of constitutionality is then perceived by Parliament, some harm will have already been made. So we are currently faced with a real risk of being governed by SIs that may in some instances be unconstitutional or otherwise too stringent and overreaching for a number of reasons which include the fact that some laws do not clearly spell out the limits of the power that is delegated for the making of SIs under that law.

“This creates a risk of abuse of that power and a situation where anything considered to fit under a certain law is pushed under through SIs.”

Chikakano said to compound matters, the PLCs which is tasked with scrutinising Sis, is the same body that has to scrutinise all other laws so whether or not it is able to pay detailed attention to all SIs is questionable.

The minister’s action was found to be in breach of the right to equal protection of the law protected by Section 56 of the Act and a gross violation of the principle of separation of powers.

Contrary to SI 142, the Transport ministry gazetted SI 166 of 2020 to legalise the payment of motor vehicle number plates and registration in United States dollars.

A court application (HC5855/20) indicated that SI 166 of 2020 was ultra vires the provisions of Section 23 (C) of the Finance Act Chapter 23:01.

In effect this law, among other things, improperly made amendments to the Reserve Bank Act (Chapter 22:15).

In section 21 of this Act, amendments were made to section 44 (C) of the principal Act to incorporate SI 33/2019 and made the electronic currency, the RTGS, legal tender.

But sections 21 and 23 of the Finance Act had not been repealed. Another application (HC5714/2020) challenged Section 3 of the Finance Act (Chapter 23:04) as well as SI 123A of 2020 and SI 145 of 2020 which came about as a result of the Finance Act.

While Section 3 of the Finance Act allows the minister responsible for finance to make regulations, it was ultra vires Section 34 of the Constitution as it sought to amend an Act of Parliament.

Beyond boundaries

On June 5 2020, through Government Gazette Volume XCV II Number 56, the Finance ministry published the Finance (Amendment of Sections 22E (1) and 22H of Finance Act) Regulations, which were published as Statutory Instrument 123A of 2020.

In these regulations, the minister created a new taxation infrastructure for carbon tax.

The minister, in the regulations, created a new tax but this instrument was ultra vires the Constitution as the minister had no power to amend an Act of Parliament or to bifurcate the taxation or the imposition of carbon tax.

On June 23, 2020, the minister also published the Finance (Amendment of Sections 22E (1) and 22H of Finance Act) Regulations, 2020 as SI 145 of 2020.

The regulations were defective in that they did not contain a specific repeal of SI 123A of 2020.

There have also been court applications challenging Covid-19 regulations, among them a challenge against SI 99 of 2020 that stipulated that only government-controlled public buses were allowed to operate during the lockdown period that was decreed from March of the same year.

The insatiable appetite to invoke the Presidential Powers (Temporary Measures) Act was evident once again on February 22, 2019 after SI 33/2019 introduced a new currency — RTGS$. It was preceded by SI 142 which declared the Zimdollar as the sole legal tender.

In August 2019, Parliament passed the Finance Act no 2 of 2019 (Act No 7 of 2019) which incorporated SI 33/2019 and SI 142/2019.

This resulted in most people losing value for the hard earned cash without compensation.

Former Finance minister and legal expert, Tendai Biti said the nation could have lost billions of dollars through the unprocedural promulgation of SIs even from prior to 2020, adding that the subsidiary laws infringed on economic rights.

“All the money Ncube collected between October 1 2018 and February 12 2019 should be reimbursed. The SI 33 of 2019 that introduced the Zimbabwean dollar and SI 142 that declared Zimdollar legal tender cost business billions of dollars.

“If you were earning US$500, you were suddenly earning 500 bond notes. It (the money) was devalued by 85% so, effectively, your salary became US$20.

“There were treasury bills of US$12 billion, so if you were owed US$1 billion you suddenly were owed USD$1 million (after the promulgation of the SI). In my calculations, the country could have lost between US$ 20 billion and US$30 billion through that SI alone.

“We are looking at close to 300 SIs, so we could be talking of about US$50 billion. SI’s are really damaging Zimbabwe,” he said.

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