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Legislation update - Bill Watch 29/2013
Veritas
July 17, 2013

Legislation update

Acts of 2013 already gazetted

Bills passed by Parliament not yet gazetted as Acts

The following Acts await gazetting following Parliament’s passing of the relevant Bills in its dying days:

  • Electricity Amendment Act
  • Securities Amendment Act
  • Microfinance Act
  • Income Tax Act.

No reforms of Acts curtailing civil liberties

Apart from the new Constitution, and the Bills recently pushed through by the Minister of Finance, there has been very little legislative activity this year. Parliament had plenty of time to handle more Bills, but none of the hoped-for democratic reform Bills indicated in the Global Political Agreement and Short Term Economic Recovery Plan were presented by the inclusive government. Attempts to go an alternative route and get reforms passed by introducing Private Members Bills were finally blocked by court proceedings culminating in the Supreme Court judgment ruling out such Bills for the remainder of the GPA. This means that POSA and AIPPA, and repressive provisions of the Criminal Law Code, remain as they were for the 2008 elections, with all their considerable potential for frustrating the levelling of the electoral playing field and the holding of free, fair and credible elections.

SI 85/2013 – Electoral Act Amendment – Never laid before Parliament

SI 85/2013 – the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations gazetted on 12th June was made under powers conferred on the President by the Presidential Powers (Temporary Measures) Act. Section 4 of this Act requires copies of all such regulations to be laid before Parliament “no later than the eighth day on which Parliament sits next after the regulations were made”. After 12th June, Parliament sat on another seven days [13th, 19th, 20th, 21st, 25th, 26th and 27th June] before adjourning for good. The regulations were not laid before either House on any one of those last seven days. Now that the Seventh Parliament has expired, it is impossible for the SI to be laid, and Minister Chinamasa and the President are off the hook.

Comment: This adds one more item to the list of legally unsatisfactory aspects of the transition to the new Constitution. But at this late stage the Constitutional Court, having already endorsed the 31st July election, is obviously unlikely to entertain further legal objections to the basis of the electoral process now under way.

SI 85 is a temporary measure, valid for 180 days only enough to provide for the coming election. In mid-December, on the 181st day, the SI will fall away completely, leaving the Electoral Act as it was before the SI was gazetted on 12th June. So a high priority early task for the next Government and Parliament will be the passing of a Bill to bring the Electoral Law into line with the new Constitution – preferably a Bill for an entirely new Electoral Act rather than another amending Bill.

Quorum query on Parliament’s passing of Income Tax Bill

A suggestion is doing the rounds to the effect that the Income Tax Bill was not validly passed by the House of Assembly. It is said that there was no quorum in place at the relevant time. The quorum for the House of Assembly was 25 MPs – the figure fixed by section 54 of the former Constitution.

There is no merit in the suggestion of invalidity. 68 MPs were recorded as present when the sitting started at 2.15 pm on the day in question, 25th June. Even if the number of MPs in the House later dropped below 25, that alone does not invalidate any of the afternoon’s proceedings because no MP raised a “no quorum” objection. This lack of objection is the important point, because section 54 of the former Constitution states that it is only if a “no quorum” objection is taken by an MP in the House that proceedings will have to be discontinued. [If an objection is taken, section 54 allows MPs a period of 7 minutes, as prescribed in Standing Orders, to reach the Chamber. During those seven minutes the division bells, audible throughout Parliament building, are rung to summon MPs, and it is only thereafter, if a quorum still cannot be assembled, that the House must adjourn without concluding its business.]

Cabinet meetings suspended

The President told Ministers at the Cabinet meeting on 2nd July that there would be no further Cabinet meetings before the elections. Press stories then speculated that President Mugabe and the permanent secretaries of Government Ministries would now be running the Government to the exclusion of Ministers. Later, an official statement on 8th July from the Chief Secretary to the President and Cabinet explained the situation as follows:

  • Cabinet meetings are temporarily suspended to allow Cabinet members to concentrated attention on the elections
  • Ministers may be summoned to attend Cabinet meetings in the usual manner should the need arise.

Comment: Whatever the factual situation in individual Ministries over the next three weeks, the legal and constitutional position is as stated in paragraph 15 of Sixth Schedule to the new Constitution:

  • the posts of Prime Minister, Deputy Prime Ministers and all Ministers and Deputy Ministers all continue in existence until the person elected as President in the coming elections assumes office after the elections
  • the persons holding these posts on 22nd May remain in them.

It follows that Ministers retain their powers and functions until the winner of the coming Presidential election is sworn in as President – in early August or, if there has to be a run-off election, in mid-September [the date for the run-off election, if any, is Wednesday 11th September].

Paragraph 15 of the Sixth Schedule to the new Constitution applies “notwithstanding any provision of the former Constitution” which means that the President cannot dismiss the Prime Minister or the Deputy Prime Ministers, or any of the Ministers or Deputy Ministers, in reliance on the former Constitution.

Government Gazette

[NOT available from Veritas]

Statutory Instruments

Collective bargaining agreement SI specifies wages and allowances for workers in the soft drinks manufacturing industry for the year 2013.

Radiation protection SI 99/2013 enacts the highly technical Radiation Protection (Naturally Occurring Radioactive Material) Regulations. A licensing system is set up for generation, possession, distribution etc of naturally occurring radioactive material [NORM] “whose radionuclide concentrations have been increased by or as a result of human practices”. Radiation protection standards, measures to protect workers, waste disposal and safety criteria for products are among other matters covered. The preamble to the regulations recites that they were made in terms of the Radiation Protection Act, and in consultation with the Board of the Radiation Protection Authority, by the “Office of the President and Cabinet”.

[Note: As the Radiation Protection Act confers regulation-making power on “the Minister”, meaning a Minister to whom the President has assigned responsibility for the Act, and as the regulations were not made by a Minister but by an Office, the regulations may well be invalid. It is true that the President by SI 162/2012 assigned the Radiation Protection Act to the “Office of the President and Cabinet”, but as pointed out in Bill Watch 49/2012 of 22nd October 2012, this assignment is of doubtful validity and therefore challengeable in court. Perhaps the next assignment of Acts, under the new Constitution, will avoid repetition of this error.]

Public service vehicles SI 100/2013 enacts new fees for the Road Motor Transportation (Public Service Vehicles) Regulations, replacing fees of 2009.

Collective bargaining agreement SI 98/2013 sets out minimum wages and allowances for workers in the Detergents, Edible Oils and Fats industry for 2013, following an arbitration award.

Local authority by-laws Kariba Municipality has amended burial fees [SI 102/2013] and rents, water and supplementary charges in Nyamhunga and Mahombekombe townships [SI 103/2013].

General notices

National monuments GN 354/2013 notifies the declaration by the co-Ministers of Home Affairs of various sites as national monuments, including the National Heroes Acre, Sikombela Restriction camp, and several provincial heroes acres.

Elections notices These notices are listed below.

Latest Website Postings

NEW since Bill Watch 28/2013:

  • GN 361/2013** – Presidential Candidates
  • GN 362/2013** – National Assembly Constituency Candidates
  • GN 363/2013** – Addresses of Constituency Elections Officers
  • GN 364/2013** – Party Lists for National Assembly, Senate and Provincial Councils
  • GN 366/2013** – Withdrawals of National Assembly Constituency Candidates
  • GN 347/2013** – ZRP Promotions Notice
  • Electoral Act as amended [incorporating amendments made by SI 85/2013]
  • MDC-T and ZANU-PF election manifestos

** Please note these items are available on the Veritas website but are not available by email

  • Money Laundering and Proceeds of Crime Act, 2013 (Act No. 4/2013)*
  • Electricity Amendment Bill [passed by Parliament 26th June, not yet gazetted as an Act]
  • Minister of Justice and Legal Affairs’ application to the Constitutional Court for a two-week extension of the harmonised elections polling date
  • South African Constitutional Court judgment in Government of the Republic of Zimbabwe v Fick & Others [delivered on 27th June. The judgment dismisses the Government’s appeal against the enforcement in South Africa of a SADC Tribunal costs award in favour of complainants in the Campbell case.]

Public holidays for 2013 [GN 348/2013]

*still available by email if requested from veritas@mango.zw

Other recent postings:

  • SI 85/2013 [regulations amending the Electoral Act]
  • SI 86/2013 and SI 96/2013 [Election proclamation and correction]
  • SI 88/2013 [Electoral Electoral (Nomination of Candidates) Regulations
  • SI 89/3012 [Electoral (Accreditation of Observers) Regulations
  • Constitutional Court order in Mawere v Registrar-General & Others [the dual citizenship case].

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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