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How Justice Zhou stopped Biti sly amendment

LAST Thursday, Zimbabweans heaved a collective sigh of relief when Justice Happious Zhou quashed the statutory instrument that brought about the unpopular 2% intermediated money transfer tax.

Guest Column: Paidamoyo Muzulu

LAST Thursday, Zimbabweans heaved a collective sigh of relief when Justice Happious Zhou quashed the statutory instrument that brought about the unpopular 2% intermediated money transfer tax.

However, it was a judgment of both practical and academic value that ministers cannot change principal Acts through subsidiary legislation.

In the euphoria, many people missed how MDC vice-president Tendai Biti in the same application had tried to pull a fast one against the government.

Biti is a canny lawyer. He is shrewd and always tries to find a way to settle Zanu PF’s brazen abuse of its majority.

But for the second time in a decade, Biti was caught out, this time by Justice Zhou, as he tried to amend the Finance Act through a court ruling.

Biti in a court application on behalf of Mfundo Mlilo, challenged Finance minister Mthuli Ncube’s Statutory Instrument 205/2018 that introduced the 2% intermediated money transfer tax, but in his draft order had proposed something as outrageous as the regulations he was challenging by trying to amend the Finance Act through a court ruling.

“Alternatively, section 3 of the Finance Act Chapter 23:04 be and hereby set aside or alternatively amended to read as follows: ‘Provided, he is not amending or repealing any provision in an Act of Parliament, the Minister responsible for Finance may make such regulations as he or may she consider necessary or expedient for the administration of this Act and the better carrying out of these purposes,” paragraph 3 of Biti’s draft order read.

Principal Acts in Zimbabwean law are amended through Parliament. A Bill is sponsored either by the minister responsible or a backbencher and is debated at the second reading or the committee stage, before becoming law after third reading.

The afore-mentioned stages, however, are dependent largely on the strength of an argument tabled or the majority of members of the House when a Bill is brought for debate or voting.

The learned judge read through the mischief Biti was trying to smuggle through the courts and ruled: “The alternative relief sought in paragraph 3 of the draft order is clearly incompetent as it is an invitation to this court to amend an Act of Parliament in the manner suggested. Amending an Act of Parliament is the domain of the Legislature.”

In the main, Justice Zhou censured the Executive when he ruled Ncube had breached the law by amending an Act through a statutory instrument and ordered the minister to pay the costs of the suit.

It was a sad reminder that Zanu PF was back to its old ways of simply using its majority MPs to rubberstamp Executive decisions even where the decision are explicitly illegal.

It seems Zanu PF is ready to take Zimbabwe down the dreaded road of tyranny.

Reading through the judgment, I admired what Justice Zhou ruled, as he refused the courts to be used to breach the separation of powers principle and use the courts to amend an Act of Parliament.

This is the trend in most countries that use Roman-Dutch law, courts only interpret constitutionality of laws and where they rule the action or statute as unconstitutional, they order the Executive to cause the amendment of the offending law brought to Parliament.

Was it that Biti wanted to do a repeat of what he tried to do in 2010, when he was Finance minister and nearly succeeded in amending the Finance Act to make the Finance minister responsible for all minerals instead of the President.

The National Assembly then duly passed the Finance Bill only for then Mashonaland Central governor Martin Dinha to notice the amendment neatly tucked in the Bill and proposed it be returned to the National Assembly.

Zanu PF MPs were apoplectic that Biti had pulled a fast one over then ageing late former President Robert Mugabe.

However, it exposed Zanu PF MPs for their docility and acceptance of everything that comes from the Executive.

Recently, the same Zanu PF MPs did not find anything amiss when Justice minister Ziyambi Ziyambi ordered the deletion of clause 40 of the Marriages Bill after it had been tabled in Parliament.

Clause 40 of Marriages Bill speaks to the recognition of civil partnerships in the distribution of property at the dissolution of the relationship or death of a partner.

Religious organisations latched onto the issue claiming Cabinet had abrogated its responsibility by recognising civil partnerships against Christian values.

Cabinet buckled under pressure from churches and clergy, despite the fact that Zimbabwe is a secular republic.

After all is said and done, the MDC actions to keep the Executive accountable are most appreciated as is its newfound judicial activism.

This is the same tactics which the opposition in South Africa (Democratic Alliance and the Economic Freedom Fighters) use to rein in President Cyril Ramaphosa’s African National Congress.

More importantly, the MDC can also learn from the whole gamut of South African opposition of using different tactics that include researched and coherent debates, cross-party partnerships on mutual issues in Parliament and applying pressure through street protests depending on what goal is to be achieved.

Paidamoyo Muzulu writes here in his personal capacity. He can be contacted on muzulu.p@gmail.com