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Unilateral assignment of ministerial functions - Bill watch 8/2010
March 06, 2010

The President, without any consultation with the Prime Minister, has gazetted the long-awaited legal instruments stating which Minister is responsible for the administration of which Acts of Parliament. There are 33 statutory instruments in a Gazette Extraordinary late on 4th March. In terms of the Constitution [section 31D] it is the President who assigns functions to Ministers, including the administration of Acts of Parliament [this involves responsibility for the implementation and enforcement of an Act, the making of regulations under the Act, and the initiation and preparation of any Bill to amend or replace the Act.] There are of course other functions to be carried out by Ministers [see note at end].

Now that there is an inclusive government and a Prime Minister, it would have been expected that there would have been consultation and agreement on the allocation of Ministerial functions. It was one of the issues, which delayed the formation of the inclusive government after the three parties signed the GPA. It was with the aid of the South African facilitators that the issues were resolved, with South Africa and SADC as the guarantors. The allocation of Ministers was to be reviewed after 6 months by the Parties with the assistance of the guarantors, SADC, AU and the Facilitator. This was not in fact done. It would not be surprising if the MDC-T were to take the issues raised by these SIs back to South Africa as Facilitator and to SADC.

A first reaction from an MDC spokesman was that “the Prime Minister was shocked”, “that is like the renegotiation of the GPA” by one party, and that in some Ministries “the MDC have been left with the shell of a Ministry with vital functions taken away”.

Below are brief notes [not a full analysis] on the gazetted Ministerial functions. There are a few typos and anomalies [e.g. the Cooperative Societies Act has been given to three different Ministries] so there may be some revisions to these SIs.

Acts Governing Media
Minister of Transport, Communications and Infrastructure Development, Nicholas Goche [ZANU-PF], has the Posts and Telecommunications Act.

Minister of Media, Information and Publicity, Webster Shamu [ZANU-PF], has the Broadcasting Act; Access to Information and Protection of Privacy Act [AIPPA]; Zimbabwe Broadcasting Corporation (Commercialisation) Act; and Zimbabwe Broadcasting Corporation (Debt Assumption) Act.

The “Office of the President and Cabinet”, in a “surprising” move, has been given the Interception of Communications Act [see note below]
[Minister of Information Communication Technology, Nelson Chamisa [MDC-T], has not been assigned any Acts.]

Acts Governing Law and Order
Co-Ministers of Home Affairs, Kembo Mohadi [ZANU-PF] and Giles Mutsekwa [MDC-T], have the Public Order and Security Act [POSA]; Police Act; Unlawful Organisations Act; Protected Places and Areas Act; Official Secrets Act; and Preservation of Constitutional Government Act. These were all under the Ministry of Home Affairs previously. One significant change is that Home Affairs now has the Prevention of Corruption Act and Anti-Corruption Commission Act [previously assigned to the Ministry of State Enterprises, Anti-Monopolies and Anti-Corruption, which no longer exists].

The Zimbabwe Human Rights Commission
This is listed under the Minister of Justice and Legal Affairs. There is in fact no Act on the statute books governing this about-to-be-formed Constitutional Commission. Listing it under Justice and Legal Affairs indicates that it is the intention that when a Human Rights Commission Act is eventually enacted it will be the responsibility of the Minister of Justice and Legal Affairs, although there is a stronger argument for putting it under the Ministry of Constitutional and Parliamentary Affairs.

Acts Governing Elections
Minister of Constitutional and Parliamentary Affairs, Eric Matinenga [MDC-T], has not been given the Electoral Act nor the Zimbabwe Electoral Commission Act as would be expected. [He has been given the Referendums Act.]

Minister of Justice and Legal Affairs, Patrick Chinamasa [ZANU-PF], has been given the Electoral Act and the Zimbabwe Electoral Commission Act, which doesn’t make sense – it is harking back to the time when his Ministry was the Ministry of Justice, Legal and Parliamentary Affairs.
[Note: under section 100J of the Constitution the supervision of the registration of voters and the compilation of voters rolls is the responsibility of the Zimbabwe Electoral Commission [ZEC], and the Electoral Act accordingly states that the Registrar-General of Voters is subject to the direction and control of ZEC. The Registrar-General’s Office is part of the Ministry of Home Affairs.]

Acts governing Parliamentary Affairs
ZANU-PF Minister of Justice and Legal Affairs, Patrick Chinamasa [ZANU-PF], has been given the Political Parties (Finance) Act, the Private Bill Procedure Act and the Public Bodies Private Bill Procedure Act. [It would have been more logical for these to come under the Minister of Constitutional and Parliamentary Affairs.] The only Act to do with Parliament allocated to the Minister of Constitutional and Parliamentary Affairs is the Privileges, Immunities and Powers of Parliament Act.

The Constitution
Minister of Constitutional and Parliamentary Affairs, Eric Matinenga [MDC-T], is now formally assigned the Constitution, except Chapter XI on Finance [which, as previously, goes to the Minister of Finance].

Private Voluntary Organisations Act
This remains with the Minister of Labour and Social Services [MDC-T] as do the Labour Act and all the other Acts previously administered by this Ministry, except Acts dealing with the Public Service and some State pensions which are now under the Minister of Public Service [MDC-T].

Acts Assigned to the Office of the President and Cabinet
Note: It is surprising to assign that several Acts have been assigned to the “Office of the President and Cabinet” instead of to a Minister, as there is no constitutional provision for Acts to be administered by the Office of the President and Cabinet. These assignments are legally questionable. The Acts are: Emergency Powers Act [previously with Home Affairs]; Zimbabwe National Security Council Act [a new Act not previously assigned]; Interception of Communications Act [previously with Transport and Communications]; Presidential Powers Act [previously with a Vice-President]; Procurement Act; Commissions of Inquiry Act; Honours and Awards Act; Research Act [previously with a Vice-President].

No Differences of Any Great Significance
There are no differences of any significance in the assignments of Acts governing Law and Order; Defence; Finance; Local Government; Mines and Mining Development; Energy and Power Development; Industry and Commerce [except investment Acts, which go to the Ministry of Economic Planning and Investment Promotion], Education; Higher and Tertiary Education; Health and Child Welfare.

Ministers without Acts to Administer
Four Ministers have no Acts to administer: Information Communication Technology [MDC-T]; Regional Integration and International Cooperation [MDC-M]; State Enterprises and Parastatals [MDC-T]; Science and Technology Development [MDC-T].

Other Ministerial Functions
A Minister’s responsibilities, of course, go beyond the administration of Acts of Parliament. Ministers have other functions within the fields covered by their portfolios – the Constitution states that a Minister exercises general direction and control over the Ministry he or she heads. A Minister is also answerable to Parliament for what his or her Ministry does or fails to do. So having responsibility for only one or two Acts of Parliament, or even none, does not mean that a Minister has nothing to do. For example, the Minister of Foreign Affairs administers only one Act – but is responsible for the conduct of the country’s foreign relations. In the past it has not been customary for the Government to publish details of the broader responsibilities attaching to each Ministerial portfolio. In the interests of transparency and accountability it is to be hoped that the Government will soon publish a document specifying those responsibilities.

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