The Second Republic: A land of Statutory Instruments

Guest Column: Paul Kaseke

THERE is never really a dull moment in our country and the past two weeks have given us numerous legal issues to consider. This edition focuses on the legality and improper use of statutory instruments that have been used to bypass Parliament. In the spotlight this week is the conferment of arresting powers on the Zimbabwe Anti-Corruption Commission and the legality of the Statutory Instrument that introduced the new local currency.

From the outset, I should point out that the actions of the government in the past few weeks have been achieved by enacting statutory instruments that were not brought before nor approved by Parliament. In terms of a recently published Extraordinary Government Gazette, SI 143 amended the Criminal Procedure and Evidence Act. In terms of this instrument, the Minister of Justice designated Zacc officials as peace officers. In terms of the Criminal Evidence Act, a peace officer has the powers to effect an arrest with or without a warrant.
This, therefore, means that Zacc officials no longer have to wait on the police to arrest individuals. This sounds like a progressive step to many because this apparently gives the Zcc teeth to bite ,but is it really so?

The most important principle to consider in testing the legality of these powers is the supremacy of the Constitution in terms of s2 of the Constitution. The section says any laws or conduct inconsistent with the Constitution is unlawful. It is equally important to note that where the Constitution bestows functions on a person or a body, these functions and powers may not be expanded without having regard to the Constitution. If this happens, then the instrument granting such functions is ultra vires, that is to say, that instrument confers more power than it is lawfully allowed to. This, ultimately, renders such an instrument unlawful. Zacc is a creature of the Constitution, which means it is established by the Constitution and, as a result, derives its function and mandate from it. Section 255 of the Constitution confers the functions on Zacc, which includes investigating and exposing corruption, combating corruption, receiving complaints, directing the Commissioner-General to investigate and refer matters to the National Prosecuting Authority for prosecution, if this is necessary. The Constitution does not give the body any powers of arrest. To substantiate this, the Constitution tasks the police with carrying out directives from Zacc, which ostensibly includes arrests. If the drafters of the Constitution intended to accord Zacc powers to arrest, they would have included this. It is the police service that is granted such powers in terms of s219 of the Constitution. The police service is responsible for crime detection and investigation.

The problem here is that Zacc’s powers ad functions flow directly from the Constitution and yet SI 143 has expanded its functions, giving it more than the Constitution permits. If government wanted to extend the powers of Zacc, this should have been done properly by expanding the powers and functions of Zacc in the Constitution. In the absence of this, the expansion of the powers and functions of Zacc is ultra vires the Constitution and, therefore, unconstitutional. Furthermore, the very instrument that conferred these powers is unconstitutional and thus unlawful for reasons I will discuss later.

On a different note, government also purported to ban the use of foreign currency as legal tender using the Reserve Bank of Zimbabwe (Legal Tender) Regulations, 2019, which is also known as SI 142 of 2019. The legality of this instrument is as problematic as its contents. Yet, again, we have an SI that, in essence, amends an Act of Parliament. The instrument contains obscure and unclear legal provisions relating to legal tender in the country, but it resurrected the Zimdollar as the only legal tender, thereby putting an end to the multi-currency regime. The principal Act that sanctioned the use of foreign currency is Finance (No2) Act, 2009, which, in terms of s17(2), deemed the euro, British pound, South African rand and the United States dollar as legal tender. By using SI 142 to remove the multi-currency regime that, the in effect, amends the Finance Act. Oddly, however, the SI makes no reference to the relevant legislation it is amending. It almost seems that government is unaware of the relevant legislation and the effect of the SI. They have created a rather confusing anomaly, wherein the Finance Act permits a multi-currency regime, but the SI purports to abandon the multi-currency system. The two laws cannot be read alongside each other, but more worryingly, government still continues to use such instruments to amend principal Acts.

This is not the first time that amendments to monetary legislation have been enacted through subsidiary legislation or statutory instruments. The RBZ Act was amended using SI 133 of 2016, which inserted s44B into the Act. This is the instrument that decreed bond notes into existence. The same Act was also amended earlier this year, using SI 33 of 2019.

The drafting of SI142 seems to have been rushed because while the SI sets the Zimdollar as the sole legal tender, it does not outlaw the usage of foreign currencies. In theory, therefore, the multi-currency system is still lawful. Unfortunately, claims that the SI outlaws other currencies do not hold any water. If anything, it may well be a defence to anyone who is accused of having committed an offence. The lack of clarity and the contradictory laws make it difficult to imagine a successful prosecution. As noted earlier, the Finance Act remains in force and cannot be amended through subsidiary legislation in the manner in which the government purports to have done. Even if the SI was clear and lawful, the SI does not create any clear-cut offences for using foreign currency as tender. It would thus be very interesting to see what laws the government relies on to effect the arrests it has promised to make for those who continue to trade in foreign currency. The truth of the matter is that due to a rushed job, arrests will simply not take place because there is no offence that deals with the use of foreign currency in place of the Zimdollar. Arrests on this basis, would be unlawful.

I have previously discussed the unconstitutionality of statutory instruments used by the government, but it is appropriate to close off with a brief discussion on these. In terms of s117 and s119 of the Constitution, Parliament is the primary and chief law-making body in the country, tasked with enacting and amending laws. In very limited instances, Parliament may delegate a part of its law-making function to any other functionary to create delegated or subsidiary legislation such as statutory instruments. It is important to note that Parliament may not wholly delegate its power – it may only delegate part of its power for purposes of a specific Act. When doing so, s134 of the Constitution must be adhered to, to ensure that the subordinate laws are lawful. In terms of s134:

a) Parliament’s primary law-making power must not be delegated;

b) Statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;

c)Statutory instruments must be consistent with the Act of Parliament under which they are made;

d) The Act must specify the limits of the power, the nature and scope of the SI that may be made, and the principles and standards applicable to the SI;

e) Statutory instruments do not have the force of law unless they have been published in the Gazette; and

f) Statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary

Legal Committee for scrutiny

Statutory Instruments must be sent to Parliament if they are to be of binding effect. In addition, Parliament’s primary law-making power, which includes making and amending legislation, must not be delegated. Any SI that purports to amend an Act of Parliament, essentially by-passes Parliament and is, therefore, unconstitutional because it violates s134.

It must be noted that both statutory instruments discussed in this piece were not sent to Parliament for scrutiny and amend laws made by Parliament, which renders them unconstitutional.

Parliament must, therefore, as a matter of urgency, exercise its power in terms of s117 of the Constitution to hold the Executive accountable for its continued subversion of the Constitution which it has done by enacting subsidiary legislation contrary to the Constitution and usurping its functions. Unfortunately, without such intervention, Zimbabwe will turn into a nation governed by statutory instruments at which point, it can aptly be called an Executive Supremacy…just saying!

Paul Kaseke is a legal advisor, commentator, policy analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He writes in his personal capacity.

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