Row over Mugabe's powers

Less than a year after the adoption of a new constitution, there is confusion over the validity of President Robert Mugabe's sweeping powers that over the years have been a subject of debate.

Early this week, parliamentary watchdog Veritas Zimbabwe argued Mugabe's use of the Presidential Powers (Temporary Measures) Act was in violation of the country's new supreme law.

"The function of the executive, that is, the president and his ministers, is to implement laws, and they should not adjudicate disputes or enact laws," Veritas said.

"Giving the president sweeping powers to enact regulations on anything which can be covered by an Act of parliament is a clear violation of the principle of separation of powers, even if the president's regulations can be revoked by parliament and expire after six months."

On January 3, Mugabe gazetted three statutory instruments, among them, Presidential Powers (Temporary Measures),  Amendment of Money Laundering and Proceeds of Crime Act (Chapter 9:24) Regulations, 2014 (SI 2/2014), Amendment of Criminal Law (Codification and Reform Act) Chapter 9:23 (SI 3/2014), as well as the Trafficking in Persons Act Regulations, 2014 (SI 4/2014).

Veritas said these regulations were ultra vires the constitution.

National Prosecuting Authority (NPA) head Johannes Tomana, who is also acting Attorney-General, said Mugabe could still legally legislate using his temporary measures powers.

"It is a necessary piece of legislation and as a matter of fact, the Act was never amended," Tomana said.

"There are situations that demand that a nation or authorities take action quicker than the processes that are taken by parliament.

"That is why these statutory instruments have a life span of about six months after which parliament can either make them law or reject the statutory instruments."

Opposition MDC-T spokesperson and former Constitutional Parliamentary Select Committee co-chairperson Douglas Mwonzora, however, concurred with Veritas.

"In terms of Section 116 of the constitution the extent of Presidential Powers in respect to making laws is limited to ascending or signing Bills into law.

"Legally, the statutory instruments that Mugabe gazetted are null and void, and that also includes the electoral regulations he published before the general elections last July," said Mwonzora.

Tomana laughed this off.

"That section does not explicitly say the Presidential Powers are no longer valid. It is far-fetched, warped reasoning, and what will a country be trying to achieve because those in power cannot react to emergencies. They would have to wait for the legislative process that can take months," said Tomana.

Veritas noted that the amendment of the Criminal Law Codification and Reform Act as gazetted in January "purported to create piracy on the high seas an offence in Zimbabwean Law â€" this amendment was not in fact necessary as piracy was already an offence under our common law".

The lobby group urged parliament to expedite the preparation of Bills to make the necessary amendments to the money-laundering law and to introduce the Bills in the National Assembly without delay to reflect constitutionalism.

"This will not be achieved if we flout it by continuing to use the Presidential Powers Act, which violates some of the basic principles of the Constitution," Veritas said.

Section 116 of the new constitution says: "The legislature of Zimbabwe consists of Parliament and the president acting in accordance with this Chapter."

Section 110 of the new charter says: "Subject to this Constitution, the President is responsible for, (a) assenting to and signing Bills; and (b) referring a Bill to the Constitutional Court for an opinion or advice on its constitutionality."

Analysts last year argued presidential powers, which gave incumbent unfettered powers and control over all the arms of government had largely remained intact in the new constitution.

Presidential powers have been the source of much debate around constitutional reforms since 1987.