Bill Watch 1/2015 of 15th January 2015

via Bill Watch 1/2015 of 15th January 2015 The Zimbabwean 16 January 2015

Parliament is in Recess until Tuesday 27th January

Parliament’s 3-day Pre-Christmas Sitting

Parliament resumed sitting in the week before Christmas [from 16th to 19th December for the Senate, 16th to 18th for the National Assembly]. Before both Houses adjourned until 27th January, they approved the Estimates of Expenditure for 2015, and passed the Appropriation (2015) Bill and the Finance (No. 3) Bill. The Bills were sent to the President’s Office for Presidential assent on 24th December [see General Notices 2/2015 and 3/2015]. Both Bills have now been gazetted as Acts [see paragraph headed Two Budget Acts below], meaning that all Acts of 2014 have now been gazetted.

National Prosecuting Authority Act

Date of commencement

The National Prosecuting Authority Act [Act 5/2014] came into force on Friday 2nd January 2015 – the publication date of Statutory Instrument [SI] 1/2015, in which the President, in terms of section 1(2) of the Act fixed that date as its date of commencement. [Soft copies of Act and SI available from the addresses given at the end of this bulletin.] There has been a long wait for this development – the Act was gazetted on 11th July 2014.

Reminder – Constitutional “alignment” amendments to 51 Acts The Fourth Schedule to the Act contains twenty pages of amendments to 51 Acts. Most of these are limited to replacing references to “the Attorney-General” by references to “the Prosecutor-General” wherever this is necessitated by the Constitution’s transfer of responsibility for prosecutions from the Attorney-General to the Prosecutor-General. There are inevitably many amendments to the Criminal Procedure and Evidence [CPE] Act but their scope is limited to the AG/PG changeover; they do not touch on other sections of the CPE Act that conflict with the new Constitution on such important matters as the rights of arrested and detained persons and persons undergoing criminal trial, and the death penalty [see Constitution Watch 36/2013 for more detail].

National Prosecuting Authority Board

General Notice [GN] 550/2014, gazetted on Friday 5th December 2014, had already announced the membership of the nine-member National Prosecuting Authority Board [full list below] [soft copy of GN available from addresses given at the end of this bulletin]. The GN distinguishes between the Board’s three ex officio and six appointed members, and states that the appointed members are to hold office for 5 years from the date of its publication, i.e., until 4th December 2019.

Note: Appointments in terms of an Act may lawfully be made before the Act has come into force; preparatory steps of this sort are permitted by section 25 of the Interpretation Act.

Ex officio members

Hon J. Tomana, Prosecutor-General [chairperson]

Mrs F. Ziyambi, National Director of Public Prosecutions [deputy chairperson]

Mr S. Siziba, NPA Director for Administration [secretary]

Note: Section 5(1) of the National Prosecuting Authority Act [NPA Act] provides for three ex officio members of the NPA Board – the Prosecutor-General [chairperson], the National Director of Public Prosecutions [deputy chairperson] and the Director for Administration]. Mr Tomana automatically became the Prosecutor-General last year, in terms of paragraph 19 of the Sixth Schedule to the Constitution; Mrs Ziyambi, formerly Deputy Attorney-General in the Criminal Division of the Attorney-General’s Office, is made National Director of Public Prosecutions by section 32(2) of the NPA Act. Section 15 of the Act makes the NPA’s Director for Administration the secretary of the Board as well as head of the NPA’s Department of Administration.

Appointed members

Mr M. Mugadza [legal practitioner qualified for appointment as judge, appointed by the Minister in terms of section 5(1)(a) of the Act after consultation with Judicial Service Commission]

Mr J. Whabira [member of Civil Service Commission appointed by its chairperson in terms of section 5(1)(b) of the Act]

Mrs V. Zifudzi [representative of Ministry of Finance and Economic Development]

Ms S. Tirivanhu [human resources management and development specialist]

Mr T. Chitapi [experienced legal practitioner]

Mr T. Chikohora [experienced accountant]

Note: Unhelpfully, the GN does not specify the capacity in which each of these six persons was appointed. The information in brackets has been verified by Veritas.

Gender balance on Board not achieved

Section 5(2) of the National Prosecuting Authority Act states in unqualified terms that at least half of the members of the NPA Board “shall” be women. And section 5(1) expressly says – not once, but twice – that the composition of the Board is subject to section 5(2). As only 3 out of its 9 members are women, the composition of the Board does not comply with either this statutory quota or with the possibly less peremptory constitutional objective of full gender balance spelled out in section 17 of the Constitution. This is a point that the Minister of Justice, Legal and Parliamentary Affairs will no doubt be grilled about in Parliament, if not in the courts .

Trafficking in Persons Act

Anti-Trafficking Inter-Ministerial Committee and commencement of section 9 of Act

Most of the Trafficking in Persons Act [Act 4/2014] came into force on 13th June 2014, which was the date on which the Act was published in the Government Gazette. But section 1(2) of the Act provided that sections 8 and 9 would only come into operation later, on a date to be fixed by the President by statutory instrument. Section 8 provides for the establishment of centres for victims of human trafficking; section 9 provides for the establishment and functions of the Anti-Trafficking Ministerial Committee.

SI 2/2015, gazetted on 9th January “in terms of section 1(2) of the Trafficking in Persons Act”, declares that “the 9th of January, 2015, shall be the date of the establishment of the Anti-Trafficking Ministerial Committee”. If, as it must have been, the intention was to make 9th January the date of commencement of section 9 of the Act, one wonders why those preparing the statutory instrument for the President’s approval used this curious form of words instead of the usual “hereby fixes the 9th January as the date on which the … Act shall come into operation”. But section 9 can be taken to have been in force since 9th January.

Note: This SI cannot be construed as referring to section 8. So Section 8 of the Act is not yet in force.

Two Budget Acts

The two Acts to give effect to the 2015 Budget were gazetted on Wednesday 7th January, making 7th January the date on which they came into operation:

· Appropriation (2015) Act [No. 10/2014]

· Finance (No. 3) Act [No. 11/2014].

GN 4/2015, publishing the Acts, did not specify the date on which the President granted his assent to them, but it is clear that assent was given within the constitutional time-limit of 21 days [Constitution, section 131(6)]. [Soft copies of both Acts are available from the addresses given at the end of this bulletin, as are the Estimates of Expenditure for 2015 and the full text of the 2015 Budget Statement.]

Bill Watch 46/2014 of 15th December 2014 described the content of the Bills for these Acts in some detail, so it can be used as a guide to the content of the Acts, apart from a provision that was added to the Finance (No. 3) Bill during its passage through the National Assembly, as noted in the following paragraph.

Amendment of Securities Act affecting Zimbabwe Stock Exchange The Finance (No. 3) Act has 32 sections, as opposed to the 31 clauses of the original Bill. This is because a new clause – now section 29 of the 32 sections in the Act – was added by the National Assembly at the request of the Minister of Finance and Economic Development. The Minister told the National Assembly that the new provision will “facilitate the demutualisation of the Zimbabwe Stock Exchange”. To achieve this the new provision [i.e., section 29 of the Finance (No. 3) Act provides for repeal of section 121 of the Securities Act, but only with effect from a date to be fixed by the President in a statutory instrument in due course.

Amendment of Indigenisation Act Section 27 of the Act makes potentially important amendments to sections 2, 3 and 4 of the Indigenisation and Economic Empowerment Act. The amendments are designed to give effect to the Minister’s undertaking in his Budget Statement that the Act would be amended to give effect to the policies on indigenisation and empowerment mentioned in paragraphs 972 to 987 of the Budget Statement. The changes include giving line Ministries responsibility for assessing indigenisation plans and gazetting notices indigenisation targets within their particular sectors. The Indigenisation and Economic Empowerment (General) Regulations [SI 21/2010] will continue in force but must now be read with such changes as are needed to bring them into line the amendments to the Act. Existing notices specifying indigenisation requirements for various sectors will continue in force for the time being, but can be replaced by line Ministers under their new responsibilities.

Government Gazette: 26th December 2014 to 9th January 2015

Acts [see above]

Appropriation (2015) Bill [H.B. 12, 2014]

Finance (No. 3) Bill [H.B. 13, 2014].

Statutory Instruments [not available from Veritas unless otherwise stated]

Commencement of National Prosecuting Authority Act – SI 1/2015 fixes 2nd January 2015 as the date of commencement of this Act [see note above].

Establishment of Anti-Trafficking Inter-Ministerial Committee – SI 2/2015 contains the President’s declaration of 9th January 2015 as the date of establishment of this committee [see note above]

Fuel quality regulations – SI 171/2014 amends SI 23/2013 so as to re-state the standards with which fuel supplied in Zimbabwe, including blend, must comply.

Instruments giving effect to Budget measures

SIs 172/2014 to 184/2014 dated 31st December 2014 contain notices or regulations, all coming into force on 1st January 2015, giving effect to Budget measures under the following headings:

A. customs and excise tariff Sis 174, 175 and 184/2014 [tariff amendments respectively adjusting customs duty on mechanically deboned meat; reduction from 45% to 40% of excise duty on clear beer; and allowing duty-free imports of fuel for the exclusive use of Government]

B. customs duty rebates for pharmaceutical manufacturers [SI 179/2014]; electrical manufacturers [SI 176/2014]; and tourism business [SI 177/2014]

C. customs duty suspensions for safari operators on certain motor vehicles [SI 180/2014]; for three beverage manufacturers on imports of bottle grade sugar [SI 181/2014]; for approved powdered milk importers on powdered milk [SI 182/214]; for approved bakers on imported wheat flour [SI 183/2014]

D. SADC customs duty suspensions [SI 178/2014]

E. VAT regulations amendments for zero-rating of sugar cane, backdated to February 2009, and livestock with effect from 1st January 2015 [SI 172/2014] and changes to VAT deferment periods on capital goods imported by companies in the manufacturing, agriculture, mining, aviation transport and health sectors [SI 173/2014].