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Commentary on General Laws Amendment Bill - Bill Watch 7/2011
March 05, 2011
House of Assembly and the Senate will resume on Tuesday 8th March
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]
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
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.
Amendments that may Adversely Affect Sectoral Interests
Some of the
amendments made by the Bill are important.
Clause 8 –
Indigenisation and Economic Empowerment Act
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
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].
18 and 19 – Local Authority Procurement to be via National
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
Amendments Needing Reconsideration
Clause 4 –
enforcement of compensation orders in favour of victims of crime
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
- 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
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.
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.
Some of the
amendments set out in the Bill are both important and thoroughly
Clause 7 –
heavy penalties for offences under Aviation Regulations
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
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.
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
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.
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
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
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