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Parliamentary Update - Bill Watch 26/2011
Veritas
June 30, 2011

The House of Assembly sat on 14th and 15th June, then adjourned to 12th July

The Senate is adjourned until 5th July

Parliamentary Legal Committee [PLC] and Indigenisation Regulations

It was reported to the House of Assembly on 1st June that the PLC had given an adverse report on the Indigenisation and Economic Empowerment (Amendment) Regulations (No. 3) [SI 34/2011], gazetted by the Minister of Youth Development, Indigenisation and Empowerment. Although the report has not yet been debated in either House, it has been made available. [Electronic version available]. The report found the penalties provided for by the amending regulations – fines of up to $2000 and imprisonment for up to 5 years for failure to submit indigenisation plans, investing in sectors reserved for indigenous Zimbabweans or understating net asset value of a business – to be both unconstitutional and ultra vires the Indigenisation and Economic Empowerment Act, for the following reasons:

  • the hefty penalties are grossly disproportionate with the offences committed, thereby being inhuman and degrading, and thus violating section 15 of the Constitution
  • by imposing prison terms on businesses, the regulations are unreasonable and absurd, thereby violating section 18 of the Constitution which provides for the right to the protection of the law.

The options now available to the Minister are:

  • to gazette new amending regulations adjusting the four penalty provisions concerned in a manner acceptable to the PLC; or
  • to attempt to persuade the Senate to reject the PLC’s report when it comes up for consideration in the Senate, which should be within two days of the Senate resuming on 5th July. [After the adverse report has been considered by the Senate sitting as a committee, a Senator who is a member of the PLC will ask the Senate to resolve that the SI is inconsistent with the Constitution. Senate Standing Orders do not state a time-frame within which these proceedings must be completed. If the resolution is adopted by the Senate, the President must repeal the offending provisions – unless, within 21 sitting days after the adoption of the Senate’s resolution, the House of Assembly resolves that they should not be repealed. See Bill Watch 22/2011 of 6th June.

[Note: The principal Indigenisation Regulations – SI 21/2010 – were considered by the PLC last year and then amended by the Minister to accommodate the PLC’s objections. See Bill Watch 25/2010 of 28th June 2010.

The Special Indigenisation Rules for the Mining Sector

The Parliamentary Legal Committee is finalising its report on the special indigenisation rules for the mining sector gazetted under General Notice 114/2011. These rules have been heavily criticised by leading lawyers as unconstitutional, ultra vires and badly drafted. See Bill Watch 16/2011 of 6th April 2011.

In Parliament

Senate The Senate did not sit this month. It last sat on 31st May, when it approved the Chinese loan agreement after brief debate and promptly adjourned until Tuesday 5th July without dealing with any of the Bills on its agenda.

House of Assembly The House sat on Tuesday 14th and Wednesday 15th June. It did not discuss the only Bill on the Order Paper, the National Incomes and Pricing Commission Amendment Bill, so that will now have to wait until the House resumes sitting on Tuesday 12th July.

The House debated and adopted condolence motions on the late Welshman Mabhena, former Deputy Speaker and Governor of Matabeleland North and the late Edgar Tekere, former Cabinet Minister. The Mabhena debate exposed once again the gap between ZANU-PF and the other parties on the conferment of National Hero status.

Question Time

During Question Time on 15th June questions without notice were fielded by Deputy Prime Minister Mutambara and Finance Minister Biti. Written questions on the Order Paper were not dealt with at all, because not one of the Ministers concerned was present in the House – another sign of continuing executive disrespect for the legislature. The number of unanswered written questions has now risen to 38. A new question of general interest just added to the written questions list calls for comment from the co-Ministers of Home Affairs on the Ministry’s measures to assist poor citizens in remote areas to obtain long birth-certificates, and new or replacement identity cards, quickly and without having to incur prohibitive travelling costs.

Acts Gazetted This Month

With the gazetting of three Acts during the course of this month, all Bills passed by Parliament so far this year have now been gazetted as Acts.

Gazette of 10th June

The following two Acts were gazetted but are not yet in force, as both of them provide for their dates of commencement to be fixed by the President by statutory instrument, and no such statutory instruments have been gazetted to date.

  • Energy Regulatory Authority Act (No. 3/2011) This Act provides for the establishment of an Energy Regulatory Authority to regulate electricity and petroleum supplies and other energy resources.
  • Attorney-General’s Office Act (No. 4/2011) This Act provides for the establishment of the Attorney-General’s Office as an entity outside the Public Service, under the control of a Board which will make staff appointments, fix conditions of service and administer and supervise the Office. The Minister of Justice and Legal Affairs is empowered to give the Board “such directions of a general character relating to the policy which the Board is to observe in the exercise of its functions, as the Minister considers to be requisite in the national interest”. Apart from such Ministerial directions the Board will “not be subject to the control or direction of any person or authority”. The Attorney-General will be an ex officio member of the Board but not its chairperson – the chairperson will be a senior lawyer appointed by the President after consultation with the Judicial Service Commission. The Attorney-General and the Deputy Attorneys-General, although members of the Office, will continue to be appointed by the President and to hold office under the Constitution. The Act does not affect the Attorney-General’s independence in the exercise of his powers or duties under section 76 of the Constitution – so the Board will not have the power to tell the Attorney-General how to do his job as the nation’s chief prosecutor.

Gazette of 24th June

Criminal Law Amendment (Protection of Power, Communications and Water Infrastructure) Act (No. 1/2011) This Act comes into force immediately, but the stiffer criminal penalties for which it provides will only apply prospectively, i.e., to offences committed on or after 24th June. The Act provides for a tougher response by law enforcement authorities and courts to vandalism and theft of electricity, telecommunications, broadcasting, railway and water “infrastructure material” and receiving stolen material. It does this by amending the Criminal Procedure and Evidence Act; the Postal and Telecommunications Act; the Broadcasting Services Act; the Railways Act; the Electricity Act; and the Water Act. Changes include:

  • adding the statutory offences concerned to the list of “serious economic crimes” for which, at the option of the Attorney-General, there can be no bail until 21 days after the first court appearance [amendments to Criminal Procedure and Evidence Act, Ninth Schedule]
  • lengthy mandatory minimum prison terms – 5 years in some cases, 10 years in others [but with a let-out where a court finds special circumstances – this is designed to keep the penalty provisions within constitutional limits]
  • as a measure to counteract theft and trafficking in stolen infrastructure material [e.g., cables, piping], requiring persons transporting any “infrastructure material” to have a special police clearance certificate [or have appropriate customs clearance if in transit through Zimbabwe] – and laying down prison terms for those unable to produce such clearance certificates on demand by police or authorised inspectors
  • provision for forfeiture of land or premises on which stolen infrastructure material is found if the owner knowingly concealed or stored the material on the land or in the premises. [Electronic version of Act available.]

Statutory Instruments

  • Broadcasting Licence Fees – regulations setting new licence fees for broadcasters appeared in SI 69/2011, which was gazetted on 7th June. The regulations were made by the Broadcasting Authority of Zimbabwe with the approval of the Minister of Media, Information and Publicity. [Please note: Electronic version of SI not available.]
  • Gazette of 10th June – Ruwa Local Board rents and charges by-laws [SI 70/2011], Medicines and Allied Substances Control Council Regulations – fee payable to Council for conducting hearings [SI 71/2011]
  • Gazette of 17th June – no statutory instruments were gazetted in the Government Gazette of 17th June.
  • Gazette of 24th June – modifications of the customs tariff [SI 72/2011] and the customs suspension regulations [SI 73/2011].

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