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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be repealed.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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