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Commentary on General Laws Amendment Bill - Bill Watch 7/2011
Veritas
March 05, 2011

Both the House of Assembly and the Senate will resume on Tuesday 8th March

Introduction

The General Laws Amendment Bill [HB 8, 2010], which was gazetted in October last year, was introduced into the House of Assembly on 16th February and is currently being considered by the Parliamentary Legal Committee. [Electronic version of Bill available on request]

General Laws Amendment Bills are Bills which amend several different Acts. They save time because Parliament does not have to go through the laborious process of considering and passing a large number of small Bills. But they should make only minor, non-contentious amendments to the Acts concerned. Over the years, however, the Government has tended to insert far-reaching and potentially controversial provisions into its General Laws Amendment Bills, presumably hoping that MPs would not notice them. This Bill continues that regrettable trend. Although its memorandum states that it “seeks to make minor amendments”, some of the proposed amendments are by no means minor.

Non-controversial Amendments

Most of the Bill is uncontroversial. There are clauses which will require appointees to the Administrative and Labour Courts to take an oath of office before the President. Then there are clauses which will amend the Ombudsman Act to reflect the office’s new title of Public Protector, and the Police Act to reflect Mr Chihuri’s title of Commissioner-General [note: a change of title should not affect Mr Chihuri’s retirement terms – see comment at end]. There is a clause allocating State assets between the Ministry of Justice, the Attorney-General’s Office and the new Judicial Service and although the clause suggests that ownership in the assets is being transferred, that cannot be the case since none of the bodies concerned is legally capable of owning property – it is all State property – so what is being transferred is use of and responsibility for the assets.

Debateable Amendments that may Adversely Affect Sectoral Interests

Some of the amendments made by the Bill are important.

Clause 8 – Indigenisation and Economic Empowerment Act

This clause will amend the Indigenisation and Economic Empowerment Act to allow the responsible Minister to carry out assessment ratings of “businesses” rather than just “companies”. The amendment itself is a small one, but its implications may be far-reaching, in that it will extend the Act’s scope to all kinds of business entities such as syndicates and professional partnerships.

Clause 11 – Environmental Management Act

This clause will make several amendments to the Environmental Management Act, one of which will require an environmental impact assessment study to be done before bill-boards can be erected or fibre-optic cables laid [this was not mentioned in the Bill’s memorandum and Harare City Council is reported to be against it].

Clauses 12, 18 and 19 – Local Authority Procurement to be via National Procurement Board

These clauses will make urban councils and rural district councils go through the tender proceedings laid down in the Procurement Act when they obtain goods and services. The clauses may be intended to curb corruption, but local authorities oppose them on the ground that putting all procurement in the hands of the national Procurement Board will result in over-centralisation, bureaucratic delays, and an increase in corruption.

Unsatisfactory Amendments Needing Reconsideration

Clause 4 – enforcement of compensation orders in favour of victims of crime

This clause will amend the Criminal Procedure and Evidence Act so that if a criminal court orders a convicted person to pay compensation to a victim of a crime, the victim will be able to have the order registered as a civil judgment against the convicted person and will be able to enforce the civil judgment even if the convicted person appeals against his conviction. If the convicted person disputes the compensation order he will have to appeal against it separately. This amendment needs to be reconsidered because:

• There is no provision for the convicted person to be told if the compensation order has been registered as a civil judgment. So it can be enforced against him without his being aware that it has been made a judgment.
• If the convicted person is not told when the compensation order has been registered as a civil judgment, he will not be able to appeal against it within the 21-day time-limit for lodging civil appeals.
• Most importantly, if the convicted person is successful in his appeal against conviction, and if the appeal court finds him innocent, he will still be liable to pay compensation to the victim of a crime he didn’t commit, unless he lodges a fresh appeal against the compensation order.

The clause will also amend the Third Schedule to the Criminal Procedure and Evidence Act by adding to the offences for which magistrates cannot grant bail without the consent of the Attorney-General and for which no court can grant bail unless there are exceptional circumstances. One of the offences so added is “contravening section 128 of the Parks and Wild Life Act.” It is not possible to contravene that section since it does not create an offence.

Clause 13 – limitations on legal action against Reserve Bank

This clause, as stated in the Bill’s memorandum, will apply the State Liabilities Act retrospectively to actions against the Reserve Bank. The memorandum does not say what the effect of this will be:

• It probably won’t affect legal proceedings that have been instituted in South Africa against the Reserve Bank. Those proceedings will continue to be governed by South African law.
• It will stop litigants in Zimbabwe from executing against the Reserve Bank; that is, from obtaining court orders requiring the Bank’s assets to be seized and sold in order to pay off the Bank’s debts. This may be a mixed blessing for the Bank. On the one hand, the Bank won’t have to worry about creditors seizing and selling its property. On the other hand, the Bank may not find people willing to do business with it.
• The amendment, as noted above, will be retrospective to the 18th June 2010, which is when regulations were promulgated under the Presidential Powers (Temporary Measures) Act to stop execution against Reserve Bank property. Those regulations, however, expired in mid-December last year, so at present there is nothing to stop Zimbabwean creditors from having the Reserve Bank’s property seized to pay off its debts.

Incidentally, it is not clear if the provisions of the State Liabilities Act requiring notice to be given before legal proceedings are taken against the State will apply to legal proceedings which have already been instituted against the Reserve Bank. The point should be clarified.

Undesirable Amendments

Some of the amendments set out in the Bill are both important and thoroughly undesirable.

Clause 7 – heavy penalties for offences under Aviation Regulations

This clause will amend the Civil Aviation Act to allow the responsible Minister to make regulations prescribing criminal and civil penalties for contraventions of aviation law. At present the maximum penalty that can be prescribed is a fine of level 5 [currently US $200] or six months’ imprisonment; this clause will increase it to a fine of level 14 [US $5 000] or five years’ imprisonment. Such severe prison sentences should be prescribed only by Parliament itself, not by a Minister. Incidentally, the increased criminal penalty is not mentioned in the Bill’s memorandum.

Clause 10 – mandatory minimum sentences for rhino poaching

Section 128 of the Parks and Wild Life Act currently imposes severe penalties [a fine of up to level 14 — currently US $5 000 — or imprisonment for up to 20 years, or both] for poaching rhinoceros and other specified protected animals. This clause will increase the penalty to a mandatory minimum prison sentence of nine years for a first offence and 11 years for a second offence.

Mandatory minimum sentences are generally undesirable:

• They are contrary to the rule of law, of which an essential element is an independent judiciary which is free to exercise its judicial functions without interference from the Executive or the Legislature. The imposition of sentence in criminal cases is essentially a judicial function, and should be left to the courts’ discretion. Justice cannot be done if courts are not allowed to take account of differences between cases.
• A mandatory sentence may be unconstitutional in that it amounts to inhuman or degrading punishment. This applies not only to barbaric sentences such as castration, but also to mandatory sentences of imprisonment if the sentences are so high that they pass beyond all rational bounds of punishment in the eyes of right-thinking people. The sentences specified in this clause come close to this.

Clause 16 – copyright protection for Acts, statutory instruments etc

This clause will give the Government copyright in various types of official documents, namely Acts and statutory instruments, court judgments, Gazette notices and official registers. Objection to the clause were outlined in detail in Bill Watch No. 44/2010 of 31st October 2010, but in summary the objections to it are as follows:

• It will give the Government a complete discretion to decide whether or not the documents should be published, so private individuals and organisations will not be allowed to publicise and disseminate laws such as the Electoral Act, or important court judgments, unless the Government agrees.
• The amendment is unconstitutional in that it violates section 20 of the Constitution, which guarantees freedom of expression, namely the freedom to receive and impart ideas and information without interference.
• The amendment will violate the rule of law, which the principals undertook to uphold in article 11.1 of the GPA. One of the essential elements of the rule of law is that the law must be readily available to the public, because if people don’t know what the law is they will not be able to obey it. So statutes and judgments which embody the law must be disseminated as widely as possible to everyone who needs or wants to read them. The Government should not be allowed to control their dissemination.
• The proposed amendment will also be contrary to best practice in the southern African region. In South Africa, Zambia, Botswana and Namibia, there is no copyright in Bills, Acts of Parliament and other texts of a legal or administrative nature.

Conclusion

As usual, the Bill is a spotty mixture of important and trivial provisions, good ones and bad - and too many bad ones to make it a welcome piece of legislation.

Re: Police Commissioner-General: A final point may be noted about clause 6 of the Bill, which will amend the Police Act to reflect the Commissioner’s new title of “Commissioner-General”, given to him by Constitution Amendment No. 18 in October 2007. Under the Act the “Commissioner” of Police must retire after four years, though the President can re-appoint him thereafter for further 12-month periods. The last time Mr Chihuri’s re-appointment was gazetted was in February 2008, and it may be that the Government felt further re-appointment was unnecessary because the 12-month term-limits laid down for the “Commissioner” in the Police Act no longer applied now that he was Commissioner-General. If that was the reason for not re-appointing Mr Chihuri it was manifestly incorrect as a change of title does not mean he is no longer subject to the same term limits. Members of Parliament might well question the co-Ministers of Home Affairs about this when the clause is debated in the House of Assembly.

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