NELSON Mandela, in one of his analytic interludes, shrewdly observed: “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.”
These words are potent and diagnostic; they aptly diagnose the root of the clashes that rocked Harare and Chitungwiza last week when kombi crews clashed with police. This is a line of thought pregnant with meaning. A law that is unjust will simply turn every citizen into a criminal. In fact, legally speaking that’s how a bad law is recognised: It is one that has every citizen in the cells.
A good law should serve the majority of society while a bad law has the reverse effect.
The exorbitant traffic spot fines that were proposed by Finance minister Patrick Chinamasa in the 2016 National Budget and hastily effected by the police can only be one example of a law that has everybody crying and questioning. Chinamasa proposed the following: Motorists who proceed against a red traffic light, overtake over a solid white line, drive without a licence or operate faulty vehicles can be fined $100 for each offence up from $20.That is a whopping 400% increase. While these are noble measures aimed at preserving the precious commodity of human life, it is the punitive aspect of the law that has raised the ire of many Zimbabweans. Of late, motorists had been groaning under the previous spot fines. One now wonders how the very pocket that has been struggling to bring out $10 can now suddenly cough up $100.
Apart from the question of reasonability, it must be put on record that the excessive fines, as things stand, are merely a proposal and not law. There is no due legal process to make the fines binding upon motorists. It is imperative that the citizenry and the law enforcers at large grasp that for a law to be binding, it must be contained within the necessary legislation, which critical ingredient is missing in the entire hullabaloo.
The Finance Act promulgated on December 31 makes no mention of the spot fines automatically removing legal effect of the fines. The fines have neither been gazetted nor do they have any founding in any legal instrument. It can be boldly said, from a legal standpoint, that the maximum spot fine the police can and should demand in the case of an offence still stands at level 3 as contained in the Criminal Procedure and Evidence Act. The spot fines are, in the eyes of the law, illegal for want of a better term.
The eagerness with which the ministerial statement was forced to take effect continues to astound. It would be the height of anarchy for any State to operate on the basis of a proposal. A ministerial statement does not constitute law in the absence of a supporting statutory legal instrument. There has to be due lawmaking process.
However, far away from the legal implications surrounding the spot fines, how rational is it to expect $100 from motorists struggling to put fuel in their vehicles in this harsh economic climate? The average motorist is the much-besieged Zimbabwean who has not had a salary in the last two months, with school fees, rentals and bills staring at them. In all honesty, insistence on these excessive fines can only drive corruption. It is a given that motorists won’t have the $100 and alternatively the corruption route would be fortified.
While the law should be upheld, it must be emphasised that the law has to be reasonable. A good law is one that makes sense and serves society. It should not have a disruptive effect as has been evident in the last few days. It apparently shows that the spot fines are not really in tandem with what constitutes a good law. While it should be appreciated that the State is in dire need of the cash amidst a mounting financial crisis, it is another thing as to whether pushing the burden to the stressed motorist is part of the solution. It is, therefore, in the spirit of all fairness that those who had been coerced to pay the fines have real cases and are well within their rights to mount court challenges to get back their money. Zimbabwe has no law currently which provides for the extortionate fines.
There is total need for consideration; there is need to strike a balance between correct enforcement of law and desisting from provoking the public into violence. As things stand, failure to review these spot fines would naturally point to one thing: defiance. It would, like the late Mandela said, leave people with no choice, but to become outlaws. Money has to come from somewhere and when people are pushed to produce what they don’t have, they have little option, but to play truancy or openly defy as we have seen in Chitungwiza and Harare.
The clashes seen so far between touts, police and local authorities are uncalled-for. The spot fines carry no legal basis at the moment and only after the lawmaking process has been followed can they take effect.
lLearnmore Zuze is a legal researcher, author and media analyst. He writes here in his own capacity. E-mail:firstname.lastname@example.org