The Sunday Mail
Parliament
Lincoln Towindo
THE term Statutory Instrument (SI) has penetrated the Zimbabwean vocabulary like a plague in recent times.
This year alone, we have seen no less than 80 SIs in the Government Gazette.
Not a week goes by without the promulgation of a legal instrument that elicits much debate.
While most appear to be inconsequential to most Zimbabweans’ everyday lives, a few have a fundamental impact on livelihoods and governance of the country.
SIs that have provoked much debate in recent weeks include SI 83 of 2020, which imposes a 20-year imprisonment term for spreading fake news about the coronavirus pandemic; SI 62 of 2020, which provides for the compensation of indigenous farmers whose farms were appropriated by Government under the Fast-Track Land Reform Programme; and the SI legalising the use of free funds during the coronavirus pandemic.
Government critics have been visceral in their condemnation of authorities’ use of subsidiary legislation, arguing that this is a deliberate attempt to short-circuit Parliament in making laws.
It has been made to seem as if SIs are evil and authorities should never resort to this option.
As a result, some have re-christened Zimbabwe the “Land of SIs”.
There was heated debate in the National Assembly last month after an MDC-A parliamentarian accused Government of usurping the House’s legislative role.
“I find it difficult today to support this clause because previously we have allowed ministers to pass the SIs in the belief that they would act in a reasonable manner, thinking they would close the gaps that are left and come up with regulations, but the ministers are abusing that little power that they have and substituting us parliamentarians,” charged Dzivaresekwa representative Edwin Mushoriwa, adding: “Our powers have been usurped.”
In response Justice, Legal and Parliamentary Affairs Minister and Leader of Government Business in the House, Ziyambi Ziyambi, said most legislators seem unaware of constitutional provisions which allow the enactment of subsidiary laws.
“The Constitution ensures efficient operations and allows delegated authority to ministers to issue regulations and statutory instruments,” said Minister Ziyambi.
“The same Constitution and standing orders make provisions for same to come to Parliament.”
The Zimbabwean Constitution does provide for the enactment of subsidiary legislation through proclamations, rules, regulations, by-laws, orders, notices or other instruments and gives them force of law.
The President, ministers and any other person or body under any legislation is allowed to make subsidiary laws under powers delegated to them by Parliament through an Act.
Section 134 of the Constitution reads: “Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but —
“(a) Parliament’s primary law-making power must not be delegated;
“(b) Statutory Instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;
“(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.”
It goes on to say the SI must specify the limits of the power, and the SI will only have the force of law after it has been published in the Gazette.
Also, the SI must be laid before the National Assembly within 30 days of promulgation in accordance with the Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.
According to the Zimbabwe Legal Information Institute (ZIMLII), SIs are necessary because Acts of Parliament cannot realistically provide for rules and regulations for society that is constantly changing and moving.
Therefore, new regulations need to be drawn up to cater for an ever-changing society.
According to ZIMLII: “In the modern state, central government intervenes in many spheres and regulates many different activities. Its activities will include such measures aimed at providing employment, housing, medical services, transport, food supplies, energy and rural development.
“Parliament itself cannot realistically be expected to pass all the multifarious rules and regulations necessary to run the complex modern state. Thus, what often happens is that Parliament passes legislation that simply establishes broad policies and then delegates to subordinate authorities the power to pass subsidiary legislation in order to bring those broad policies into effect in detailed form.
“The delegate may, for instance, be a minister who is able to call upon technical expertise within his ministry when deciding how the broad policies can best be brought into operation, or the delegate could be a local authority which is able to decide how best to implement the policies in light of local conditions.”
As explained in a previous instalment, law-making through Parliament is a rather elaborate process that requires time to complete and in times of emergencies, SIs are the blunt go-to instrument for authorities.
Many may be unaware that stringent controls are hardwired into the country’s laws to ensure that SIs are consistent with the supreme law and all Acts of Parliament.
For a start, an SI goes through the scrutiny of the Parliamentary Legal Committee to ascertain its conformity with the Constitution, and if found to contravene the country’s laws this triggers a process where it can be struck off within 21 days or taken to the Constitutional Court for determination.
Once at the Constitutional Court, the Statutory Instrument is suspended pending the court’s decision. The courts are also empowered to determine the validity and legality of any SI and concerned citizens can approach the courts if offended by provisions of any SI.
While it may seem as though Government is unreasonably enacting SIs, experiences from neighbouring jurisdictions paint a very different picture.
The South African government, for example, has promulgated no less than 650 General Notices since the beginning of the year to date.
