Chief Court Reporter
THE application by the Zimbabwe Human Rights Association (ZimRights) challenging the legality of the recent increase in fines for criminal offences on the grounds that the change had not been submitted to Parliament for scrutiny has been thrown out by the High Court.
Although Justice Webster Chinamora conceded that the application was urgent, he had problems with the relief sought.
Justice Chinamora said the order sought was incompetent since it put the cart before the horse.
If the High Court ruled the order unconstitutional it would still be operational and the fines levied until the Constitutional Court had confirmed the ruling.
The new fines were published last month in a Statutory Instrument published in a Government Gazette last week in terms of Criminal Law (Codification and Reform) Act.
The increase saw the maximum fine for the highest Level 14 set at $1,6 million, up from $800 000, which applies to cases where a fine, with or without additional jail time is considered appropriate for offences like treason, arson, culpable homicide and incest.
The maximum for the lowest Level 1, which can be used for admission of guilt fines at a police station is now $1 000. The rise in fines was designed to take into account the inflation in the first half of last year after the previous review.
ZimRights, along with Harare lawyer Sheila Frances Jarvis, approached the High Court on urgent basis challenging Statutory Instrument 25 of 2021, arguing its implementation was unlawful as it was never submitted to the Parliamentary Legal Committee nor the National Assembly or Senate for scrutiny.
But Justice Chinamora could not allow the application, upholding the preliminary point raised by the Justice, Legal and Parliamentary Affairs Minister on incompetency of the relief sought.
He said the High Court had the power to deal with constitutional issues which arise before it and can make orders of constitutional invalidity, but this was not his objection to the provisional order that ZimRights sought.
“The problem is that there is a legal conundrum,” said Justice Chinamora.
The interim order he was being asked to grant would effectively suspend the operation of SI 25 before it had been declared constitutionally invalid.
He said if he was to declare the statutory instrument invalid for falling foul of the Constitution, its operation could not be suspended immediately because the Constitution provided that where a court made an order concerning the constitutional invalidity of any law, the order had no force and effect unless it was confirmed by the Constitutional Court.
“Accordingly, it is clear that any order that I might make declaring SI 25/21 unconstitutional must, as a matter of constitutional imperative, be referred to the Constitutional Court for confirmation before it can take effect,” he said.
“In the meantime, the statutory instrument would remain in force. To accept the invitation to issue the interim order required by the applicants is akin to putting the cart before the horse. I have no wish to engage in such a stunt.”
In their application, ZimRights wanted an order to interdict the enforcement of the Criminal Law (Codification and Reform) (Standard Scale of Fines) Notice 2021 (SI 25/21), which was published in an extraordinary Government Gazette of January 25 2021.
They argued that the SI was not made in accordance with the provisions of the Criminal Law (Codification and Reform) Act, which provides that, a statutory instrument may not be made in terms subsection (5), unless a draft has been laid before Parliament and approved.
It was also their contention that the conduct of the parent ministry breached the Constitution because it did not subject the statutory instrument before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.