News / National
War vet asks courts to clip Mnangagwa's wings
13 Jul 2021 at 09:07hrs | Views
CONTROVERSIAL war veteran, Fredrick Matanda, has filed a fresh application challenging as unconstitutional the Presidential Powers Act.
In May, Matanda successfully challenged Constitutional Amendment No. 2 that extended Luke Malaba's term of office as chief justice by another five years.
This comes after Mnangagwa used Presidential Powers (Temporary Measures) Act and amended the Exchange Control Act and the Bank Use Promotion Act through the Statutory Instrument (SI) 127 of 2021.
However, in his application, Matanda said the Presidential Powers (Temporary Measures) Act was unconstitutional and in breach of the country's Constitution.
"I, therefore, seek an order that the Act be set aside or in the alternative that Section 2 (2) of the Act be and is hereby declared null and void," he argues in his application," he argued in his application.
"Once the Act is set aside, it follows that the Regulations, SI 127/2021 become a nullity and must be set aside. However, the regulations themselves, to the extent that they create offences and empower the Reserve Bank to impose punishment without due process, are clearly a breach of the citizens, right to equal protection and benefit of the law as protected by Section 56 (1) of the Constitution and further a breach of the rights protected under sections 68 and 69 of the Constitution of Zimbabwe.
"Thus, even assuming that the President's powers to make the regulations were lawful, the Regulations themselves on their own infringe Section 56, Section 68 and 69 of the Constitution. This is the nub of the instant application.
Statutory Instrument (SI) 127 of 2021 was gazetted on May 26, 2021, as an amendment to the country's financial regulations.
Key provisions of the temporary measures prohibit businesses from selling goods and services or quoting at an exchange rate above the ruling auction market rate, issuing buyers with a Zimbabwean dollar receipt for payment received in foreign currency, giving buyers a discount for paying in foreign currency and it sets out penalties for businesses and individuals that refuse to accept payment in the Zimbabwe dollar at the ruling auction market rate.
The government justifies the SI as necessary to ensure that known businesses that get foreign currency from the auction market do not use the parallel market rates to price their goods and services.
As such the SI is intended to provide a level playing field in the market and protect consumers from profiteering businesses.
However, Matanda said it was disappointing that three years after the ouster of the late former President Robert Mugabe, the new dispensation had not completed aligning inconsistent laws to the constitution.
"Clearly this is a flagrant and blatant breach of constitutionalism, in particular, the right to equal protection and benefit of the law codified in section 56 (1) of the Constitution, the right to be heard before an adverse decision is taken as codified in Section 68, and the right to a fair trial in criminal matters as protected by section 69 of the constitution of Zimbabwe.
Matanda said throughout post-Independence history, the Zimbabwe currency has been mismanaged grossly resulting in its total decimation, particularly during the meltdown years 2006 to 2008.
He said monetary issues should be discussed in parliament first before they are passed into law.
"In other words, the President is not the Legislature. My view, therefore, is that to the extent that the Act allows the President to encroach and exercise a law-making function, then the same is clearly a breach of the Constitution. In the same vein, I do not believe that the powers to make ordinary, non-legislative regulations also exist. "
He said the aspect of law-making should never be delegated.
Last May, Matanda successfully challenged Constitutional Amendment No. 2 that extended Luke Malaba's term of office as chief justice by another five years.
Malaba's term office came to an end as he had turned 70 years that month. However, this was overturned after Mnangagwa signed into law Amendment No. 2 that allowed a chief justice to remain in office until the age of 75.
Soon, after the gazetting of Amendment No.2, Matanda successfully challenged Mnangagwa over the extension of Malaba's term of office before the state appealed against the ruling in the Supreme Court.
In May, Matanda successfully challenged Constitutional Amendment No. 2 that extended Luke Malaba's term of office as chief justice by another five years.
This comes after Mnangagwa used Presidential Powers (Temporary Measures) Act and amended the Exchange Control Act and the Bank Use Promotion Act through the Statutory Instrument (SI) 127 of 2021.
However, in his application, Matanda said the Presidential Powers (Temporary Measures) Act was unconstitutional and in breach of the country's Constitution.
"I, therefore, seek an order that the Act be set aside or in the alternative that Section 2 (2) of the Act be and is hereby declared null and void," he argues in his application," he argued in his application.
"Once the Act is set aside, it follows that the Regulations, SI 127/2021 become a nullity and must be set aside. However, the regulations themselves, to the extent that they create offences and empower the Reserve Bank to impose punishment without due process, are clearly a breach of the citizens, right to equal protection and benefit of the law as protected by Section 56 (1) of the Constitution and further a breach of the rights protected under sections 68 and 69 of the Constitution of Zimbabwe.
"Thus, even assuming that the President's powers to make the regulations were lawful, the Regulations themselves on their own infringe Section 56, Section 68 and 69 of the Constitution. This is the nub of the instant application.
Statutory Instrument (SI) 127 of 2021 was gazetted on May 26, 2021, as an amendment to the country's financial regulations.
Key provisions of the temporary measures prohibit businesses from selling goods and services or quoting at an exchange rate above the ruling auction market rate, issuing buyers with a Zimbabwean dollar receipt for payment received in foreign currency, giving buyers a discount for paying in foreign currency and it sets out penalties for businesses and individuals that refuse to accept payment in the Zimbabwe dollar at the ruling auction market rate.
The government justifies the SI as necessary to ensure that known businesses that get foreign currency from the auction market do not use the parallel market rates to price their goods and services.
As such the SI is intended to provide a level playing field in the market and protect consumers from profiteering businesses.
However, Matanda said it was disappointing that three years after the ouster of the late former President Robert Mugabe, the new dispensation had not completed aligning inconsistent laws to the constitution.
"Clearly this is a flagrant and blatant breach of constitutionalism, in particular, the right to equal protection and benefit of the law codified in section 56 (1) of the Constitution, the right to be heard before an adverse decision is taken as codified in Section 68, and the right to a fair trial in criminal matters as protected by section 69 of the constitution of Zimbabwe.
Matanda said throughout post-Independence history, the Zimbabwe currency has been mismanaged grossly resulting in its total decimation, particularly during the meltdown years 2006 to 2008.
He said monetary issues should be discussed in parliament first before they are passed into law.
"In other words, the President is not the Legislature. My view, therefore, is that to the extent that the Act allows the President to encroach and exercise a law-making function, then the same is clearly a breach of the Constitution. In the same vein, I do not believe that the powers to make ordinary, non-legislative regulations also exist. "
He said the aspect of law-making should never be delegated.
Last May, Matanda successfully challenged Constitutional Amendment No. 2 that extended Luke Malaba's term of office as chief justice by another five years.
Malaba's term office came to an end as he had turned 70 years that month. However, this was overturned after Mnangagwa signed into law Amendment No. 2 that allowed a chief justice to remain in office until the age of 75.
Soon, after the gazetting of Amendment No.2, Matanda successfully challenged Mnangagwa over the extension of Malaba's term of office before the state appealed against the ruling in the Supreme Court.
Source - newzimbabwe
