via Presidential powers null and void | The Financial Gazette 6 Mar 2014
Robert Mugabe might have acted contrary to the Constitution when he amended several laws using Presidential Powers, which could render them null and void. Zimbabwe gazetted the Amendment of Money Laundering and Proceeds of Crime Act [Chapter 9:24]) Regulations, 2014 [SI 2/2014]; Amendment of Criminal Law (Codification and Reform Act [Chapter 9:23] [SI 3/2014]; and the Trafficking in Persons Act) Regulations, 2014 [SI 4/2014] using the Presidential Powers (Temporary Measures) Act in January.
But a law monitoring institution, Veritas, argues that while these regulations were intended to harmonise local laws with international standards imposed by the Financial Action Task Force (FATF), the amendments were illegal because they were made using an illegitimate process. FATF is an international body responsible for setting up and enforcing standards against money laundering and financing of terrorism.
FATF can place a country on international embargo if its laws fail to comply with its standards. “This would deny international recognition of our financial system and thus prevent us from accessing international funding,” Veritas said. While the old Constitution provided for Presidential Powers to make law in certain instances, Veritas said the new Constitution proscribed the President from using the Presidential Powers Act to promulgate law.
However, Zimbabwe Lawyers for Human Rights executive director, Irene Petras, said Presidential powers could still be used in certain situations. “One has to look at the circumstances in which they are exercised, and before they are exercised there must be proper and sound justification as to why there is need to use them, as it is an extreme exercise of unilateral power. The procedure and grounds for justification are outlined in the law. Where they are not followed, and/or where the justification is felt not to be sound in terms of the law, then there can be grounds for a challenge,” Petras said.
She added: “Say, for example, their use has a financial implication on the fiscus and this is not properly justified, it can have a negative impact such as was seen in the deployment of Zimbabwean troops in the Democratic Republic of the Congo. Similarly, where the powers are exercised and usurp the function of another arm of government this can be challenged — an example was the use of the powers to amend the electoral law even when Parliament was still in session before the last elections.”
But the greatest danger in the use of the Presidential Powers is when they are used for partisan purposes, she said. “Where the powers are used to change the law to favour the person exercising the powers, this can also be challenged for constitutionality – for example where changes have been made to electoral laws by a person who is a candidate in those same elections and the changes can be argued to favour that candidate,” Petras said.
Another tricky aspect about the Presidential Powers is the duration of time when the Presidential decree is allowable. “The laws passed through a Presidential decree are only enforceable for a maximum period of six months from the date of their promulgation after which they automatically lapse,” said Obert Gutu lawyer and former deputy justice minister. “This is so because such laws are supposed to be emergency laws that do not go through Parliament. Essentially, therefore, a Presidential decree usurps on the key function of Parliament, which is to make laws.”
Veritas said Parliament could regularise the unconstitutional amendments made by President Mugabe. “The necessity of bringing the country 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,” explains Veritas.