Bill Watch 60/2013 [2014 Budget on 19th December: Update on Printing of Bills]

BILL WATCH 60/2013

[17th December 2013]

The Minister of Finance and Economic Planning will Present the 2014 Budget

in the National Assembly on Thursday 19th December

President Recalls Parliament for 19th December Budget Presentation

Special recall by President

The President has used his constitutional right to recall both Houses of Parliament for the presentation of the 2014 Budget on Thursday 19th December.  Section 146(a) of the Constitution authorises the President to recall Parliament at any time “to conduct special business”.  The official Parliamentary notice of the President’s summons is as follows:

“Pursuant to section 146(1) of the Constitution of Zimbabwe, His Excellency the President of Zimbabwe, Cde R.G. Mugabe has summoned Parliament to meet on the 19th of December 2013.  This is to enable the Minister of Finance and Economic Planning to present the National Budget Statement.  This command by the President automatically amends the resolution by Parliament to adjourn business until the 28th of January 2014.”

Section 146(a) constitutes an exception to the discretion Parliament otherwise has to determine the time and duration of its sittings and periods of recess.

[Note: Bill Watch 59/2013 of 11th December incorrectly stated the recall would be by the Speaker, at the President’s request, in terms of Standing Order 194.  The error is regretted.]

The agenda for 19th January

National Assembly  The Budget Statement will be presented to the National Assembly, as required by section 305 of the Constitution – not to a joint sitting of both Houses, although both National Assembly and Senate have been recalled. It is item 1 on National the Assembly’s Order Paper.

It is unlikely that there will be time for business apart from the Budget presentation and the tabling of the Estimates of Expenditure for 2014 and the draft Finance Bill detailing proposed taxation changes.  The Order Paper, however, lists as agenda items 2 and 3 the ongoing debates on the President’s September speech opening Parliament in September, and a new motion by MDC-T MP Brian Tshuma calling for on the Government as majority shareholder to ensure the payment of accumulated outstanding wages to Hwange Colliery workers.

Senate  The Order Paper for the Senate lists Question Time; ongoing debates on motions on alignment of existing laws with the Constitution, cancer policy and the President’s September speech; and a new motion proposing reduction of carnage on the country’s highways by limiting hours of use by heavy transport vehicles and rehabilitating the railway system.  [Note: It is customary for the Senate to suspend its own business for an hour or two on Budget Day to enable Senators to follow the Budget presentation in the other House.]

Portfolio Committee meetings

The dates of the customary follow-up Post-Budget workshop for MPs, and the portfolio committee meetings on allocations of funds to the individual Ministries and institutions that they monitor, will be covered in a separate bulletin as soon as they become available.

Electoral Amendment Bill

Electoral Amendment Bill being printed for Parliament  The Minister of Justice, Legal and Parliamentary Affairs’ Electoral Amendment Bill has been sent to the Government Printer for printing and gazetting in preparation for its presentation in Parliament.  The Bill should have been brought to Parliament and passed in time for it to become law as an Act no later than the 10th December, so it is particularly urgent [see reasons below].

Electoral Law constitutionally defective since 10th December  The Bill is urgently needed, because since 10th December the Electoral Act has reverted to its pre-June 2013 form, meaning that it is no longer complies with the new Constitution.  This state of affairs has been brought about by the expiry with effect from 10th December of the amendments to the Act made by SI 85/2013, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations [see explanation of expiry below].  Section 7 of the Presidential Powers (Temporary Measures) Act states expressly that a law that was suspended, amended or modified by SI 85 will “with effect from the date of such expiry or repeal, have force in all respects as it existed before being suspended, amended or modified by the regulations”.

No procedure for filling party-list vacancies in Parliament  One of the results of the expiry of SI 85/2013 is that the Electoral Act no longer provides a procedure for the filling of vacant party-list seats in Parliament, in breach of section 157(1)(d) of the Constitution, which states that “an Act of Parliament must provide for … the procedure for filling vacancies” in party-list seats.  [Note:  Bill Watch 44/2013 of 6th September, and Bill Watch 59/2013 of 11th December, set out the painstaking procedure for filling such vacancies laid down by SI 85/2013’s short-lived modifications of section 39 of the Electoral Act.]

Two current Senate party-list vacancies cannot be filled  It follows that until the present Bill becomes law, party-list vacancies in the National Assembly and the Senate cannot be filled.  This means that ZANU-PF will now have to wait before filling the two Senate vacancies that have already gone unfilled for several months.  One is the Mashonaland West seat left vacant by the election of Mrs Madzongwe as Senate President; the other is the Manicaland seat left vacant by the death of Senator Kangai and reportedly earmarked for former Reserve Bank Governor Gideon Gono.

Why SI 85/2013 has expired  As the name of the Act warns, regulations made under the Presidential Powers (Temporary Measures) Act are merely temporary measures, which under the Act “expire and cease to have any effect” immediately before the 181st day after they came into force [Act, section 6, which also prohibits repeat regulations for the next six months].  SI 85/2013 was gazetted and came into force on 12th June 2013.  10th December was the 181st day after the 12th June.

Comment: The lengthy regulations amending the Electoral Act that made up SI 85 were regarded by many in legal circles as unconstitutional and ultra vires the Presidential Powers (Temporary Measures) Act. Nevertheless, legal arguments to that effect were unanimously rejected by the Constitutional Court on 4th July when it dismissed four cases seeking the postponement of the election date [see Court Watch 12/2013 of 3rd September].  As a result the harmonised elections went ahead under an Electoral Act modified by temporary amendments valid for 180 days only.  The reasons for the Constitutional Court’s decision have not been released.

Kwekwe Central National Assembly Seat:

Suspension of Electoral Court’s Order to Hold By-Election

Order granting MDC-T election petition  On 2nd December Justice Mutema, sitting in the Electoral Court in Bulawayo to hear an election petition lodged by MDC-T’s Blessing Chebundo, granted an order setting aside the election of ZANU-PF’s Masango Matambanadzo  as National Assembly member for the Kwekwe Central constituency and ordering a by-election.  Mr Chebundo represented the constituency in the previous Parliament, but was an unsuccessful candidate for the seat in the 31st July elections.

A default judgment  Justice Mutema’s decision was a “default judgment” – a judgment given when neither the respondent, Mr Matambanadzo, nor his lawyers were in court to oppose the granting of Mr Chebundo’s election petition.  Mr Matambanadzo’s lawyers promptly announced that the default had been caused by an administrative failure leading to their not having received notice of the hearing date.  They lodged a court application to have the judgment set aside and a separate urgent chamber application for Justice Mutema’s order to be suspended pending finalisation of the first application.  [Note: The rules of court allow a court to set aside its own default judgment for “good and sufficient cause”.]

Vacancy order suspended for time being  On 4th December Justice Moyo granted the urgent chamber application and suspended Justice Mutema’s order until the finalisation of the other application to set the default judgment aside.  The effect is that Mr Matambanadzo continues as Kwekwe Central MP for the time being, until the court decides whether the 2nd December judgment against him should be set aside.  This matter will be dealt with separately – but presumably very soon, because the law states that election petitions must be decided within 6 months of their lodging, i.e., for present purposes, by no later than mid-February 2014 [Electoral Act, section 182].

[Comment: In an official statement issued after the party’s National Council meeting on 6th December, MDC-T said its National Council welcomed Justice Mutema’s decision and “called upon SADC and AU to revisit their positions on the July 31 elections, now that the court has confirmed that the elections were rigged”.  The suspension of the judge’s decision has weakened that call.]

Update on Income Tax Act

President Mugabe had until Friday 29th November to decide whether to sign the Bill for this Act into law – or to send it back to Parliament [Constitution, section 131].  The Act has not been gazetted, and the President’s decision has not been made public.  It is to be hoped that the Minister of Finance and Economic Planning will explain the position in his Budget presentation, if not earlier.

Update on Bills

Four Bills are being prepared by the Government Printer for gazetting prior to presentation in Parliament [summaries and copies cannot be provided until they have been gazetted]:

  • ·      National Prosecuting Authority Bill [sent to printer 13th December]
  • ·      Electoral Amendment Bill  [sent to printer 4th December]  See note at the beginning of this bulletin.
  • ·      Sovereign Wealth Fund of Zimbabwe Bill 
  • ·      Biological and Toxin Weapons Crimes Bill

Government Gazette of 13th December

Statutory Instruments [SIs]

SI 164/2013, backdated to 10th July, makes additions to the licence fees set out in the Second Schedule to the Postal and Telecommunications (Licensing, Registration and Certification) Regulations.  A new item 5A sets out the fees for “private network licences”, and a new sub-item 6(iii) the fee for “VSAT with local hub’.

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