via Part to go into Recess during August – The Zimbabwean 21 July 2015
Parliament is due to go into recess for the whole of August, starting after close of business on Thursday 30th July.
It may be possible to get two current Bills – the Zimbabwe Gender Commission Bill and the Joint Ventures Bill through both Houses by then. But the two large Bills – the General Laws Amendment Bill [GLA Bill] Criminal Procedure and Evidence Amendment Bill [CPEA Bill] – will probably have to be carried over into September, because the Portfolio Committee on Justice, Legal and Parliamentary Affairs has not yet held public hearings on them.
Extensive Amendments to Laws Should Not be in the GLA Bill
The long title to the GLA Bill is “To make amendments to Acts to bring them into conformity with the Constitution.. And the scope of the Bill should be limited to this.
Most of the amendments the Bill makes to 126 Acts of Parliament are fairly straightforward terminological and section-number changes needed to bring the Acts concerned into line with the Constitution.
But some of the amendments, e.g. to the Criminal Law Code and the Trade Marks Act, do not deal with alignment, and therefore fall outside the “alignment only” objective clearly stated in the long title. This defect could, perhaps, be cured by a Committee Stage amendment to the long title, but that would leave untouched the problem posed by the Bill’s awkward mix of straightforward alignment amendments and more complex amendments.
The Bill makes extensive changes that are not straightforward and therefore require further, painstaking consideration. In particular this applies to the amendments to:
• the Electoral Act [as Veritas has pointed out in its Bill Watches 17 and 18/2015 of 5th and 7th June]
• the Privileges, Immunities and Powers of Parliament Act [see Bill Watch 26/2015 of 20th July]
• the Trade Marks Act [See Bill Watch 26/2015 of 20th July].
• the Criminal Law Code.
It is, therefore, suggested that the amendments not directly related to constitutional alignment and especially those making far-reaching and complex amendment should have been dealt with in separate Bills – a suggestion it is hoped that Parliamentary Legal Committee, the Portfolio Committee and the Houses consider when they tackle the Bill.
Government Resorts to Presidential Powers Regulations Again
Government has published regulations, coming into force on 17th July, under the Presidential Powers Temporary Measures Act which will apply provisions of the State Liabilities Act to the Premier Service Medical Aid Society [PSMAS] – which is not a State entity. The State Liabilities Act lays down that before anyone can sue the State, sixty days notice must be given and that a court cannot order the attachment of State property to pay debts owed by the State.
These regulations apply to any legal proceedings against Premier Service Medical Aid Society [PSMAS], including proceedings previously launched and pending on 17th July. Assuming the regulations are valid [see below], their effect is that:
• there can be no court-ordered attachment of PSMAS property, or sale of such property in execution, to satisfy debts owed to PSMAS creditors; and
• legal proceedings against PSMAS to enforce payment of debts owed by it must be preceded by at least 60 days’ notice to PSMAS.
Are the regulations valid? As Veritas has pointed out in various bulletins since the adoption of the Constitution in 2013, the Presidential Powers (Temporary Measures) Act is inconsistent with the Constitution and therefore invalid [see the detailed explanation in Constitution Watch 1/2014 of 15th January 2014]. That being so, the Act can no longer be invoked as empowering the President to make regulations.
Another ground for challenging the regulations is that they purport to apply to pending proceedings. This makes them at least partially retrospective and also amounts to a violation of vested rights which are protected by section 71 of the Constitution. Yet another ground is that they limit the rights of creditors of PSMAS already adjudicated.
Even if these regulations do not receive an adverse report from the Parliamentary Legal Committee, therefore, they could probably be set aside by the courts.
Regulations last for maximum of 6 months Under the Presidential Powers (Temporary Measures) Act the regulations will lapse entirely after six months even if they are not challenged and set aside before then.
Green Light from Supreme Court for Mwenezi By-Election
Court Dismisses Bhasikiti Appeal
On Friday 17th July the Supreme Court dismissed an appeal by Mr Bhasikiti, former ZANU-PF MP for Mwenezi East, against Justice Bhunu’s rejection of his application to set aside his expulsion from ZANU-PF and the resulting loss of his seat in Parliament. This early conclusion of the case eliminated potential problems over the holding of the nomination court for the relevant by-election, which the President had set for 20th July.
Nomination court for by-elections: 20th July
Nomination courts sat yesterday at the magistrates courts in Bindura [for Mbire constituency], in Masvingo [for Mwenezi East] and in Marondera [for Marondera Central]. The sole candidate nominated for Mwenezi East, ZANU-PF’s Joshua Moyo, was declared elected unopposed. Two or more nominations were successfully lodged for Mbire and Marondera Central, so polling in those by-elections will go ahead on 19th September.
In Parliament Last Week
• Public Debt Management Bill On 16th July the Parliamentary Legal Committee’s non-adverse report on the amended Bill was announced, clearing the way for the National Assembly to complete work on the Bill this week.
• Zimbabwe Gender Commission Bill The Committee Stage of this Bill was taken on 16th July, and the Government’s amendments to the Bill were approved by the National Assembly. The amended Bill was then referred back to the Parliamentary Legal Committee [PLC] for a report on the constitutionality of the amended provisions The report is needed before the Bill can be given its final reading and sent to the Senate.
[Both Bills and both sets of amendments are available from the addresses given at the end of this bulletin].
Motions There was further debate on the motion calling for harmonisation of the mining and land and agricultural laws and the motion advocating people-centred development policies and improvement of conditions for foreign direct investment.
Question Time At the start of Question Time Hon Gonese, MDC-T Chief Whip, protested that only a few Ministers were present, although the Speaker had recently ruled that, under both Standing Orders and the Constitution, all available Ministers must be present on such occasions. Questions and answers then took up the rest of the afternoon, with the Ministers of Primary and Secondary Education, Agriculture, Mines and Energy, and Health and Child Care kept particularly busy.
New chairperson for Portfolio Committee Hon Chitindi’s appointment as chairperson of the Lands, Agriculture Mechanisation and Irrigation Portfolio Committee was announced on 14th July. The post was formerly held by David Butau, former ZANU-PF MP for Mbire, whose Parliamentary seat fell vacant on 10th June following his expulsion from ZANU-PF.
Bills No Bills were ready for the Senate’s attention.
Motions There were further contributions from Senators to the ongoing debates on the scourge of child marriage; problems posed by the Hwange National Parks elephant population; and the report of Parliament’s delegation to the recent Inter-Parliamentary Union [IPU] Assembly in Vietnam.
Question Time This took up the whole of Thursday afternoon’s sitting.
PLC Reports on Statutory Instruments
Non-adverse PLC reports have been announced on all SIs gazetted during April and May with one exception. The SIs thereby cleared by the PLC are listed in Bill Watch bulletins issued for April and May and/or Veritas new cumulative list of 2015 statutory instruments. [Note: This list includes SI 62/3015 dealing with retirement from the Prisons and Correctional Service, which Veritas thought merited an adverse report because it was not made by the right regulation-making authority – see Bill Watch 20/2015 of 9th June].
Exception: The exception is SI 49/2015 – Chipinge Rural District Council’s building by-laws, still being considered.
Coming up in Parliament This Week
Bills under consideration by PLC
The National Assembly is waiting for PLC reports on the following Bills before further progress can be made, i.e., before the Ministers concerned can start the Second Reading stages by making their speeches outlining what the Bills seek to achieve and explaining why it is necessary for Parliament to pass them into law :
• Zimbabwe Gender Commission Bill [Veritas commentary in Constitution Watch 8/2014 of 26th August]
• Joint Ventures Bill
• General Laws Amendment Bill [GLA Bill] [see comment above]
• Criminal Procedure and Evidence Amendment Bill [CPEA Bill]. [Veritas commentary in[Constitution Watches 14 and 15/2015 of 15th July].
Motions Hon Gonese will request the restoration to the Order Paper of the motion on Child Rights that lapsed at the end of the First Session. Three new motions are also high on the Order Paper for Tuesday: one on accelerating the value-addition and beneficiation aspects of ZimAsset; one on the need to curb capital flight; and another on the dangers to the economy posed by transfer pricing.
Question Time [Wednesday] 39 written questions await Ministers, including several of topical interest for Vice-President Mnangagwa related to his responsibility for the Ministry of Justice, Legal and Parliamentary Affairs: on the suitability of community service as punishment for convicted rapists; on the Government’s position on ratifying the Rome Statute of the International Criminal Court; on the Government’s view on the crime against humanity constituted by forced disappearances; on why Zimbabwe has not ratified the Protocol Establishing the African Court of Justice and Human Rights. There is also a question for the new Minister of Women’s Affairs, Gender and Community Development, Hon Chikwinya, on her Ministry’s preparations for Zimbabwe’s report, due next year, on compliance with the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW].
The Senate will not be sitting this week. Nor will its Thematic Committees.
Presidential Powers Regulations to protect PSMAS Only one statutory instrument was gazetted last week, on Friday 17th July: the Presidential Powers (Application of Cap 8:14 to Premiers Service Medical Aid Society) Regulations, 2015 [SI 77/2015] [see above for a note on the validity and purported effect of these regulations].