Perrence Shiri, parliamentarians head for showdown

LANDS, Agriculture and Rural Resettlement Minister Air Chief Marshal Perrance Shiri (Retired) and parliamentarians are headed for a showdown after legislators rejected regulations that sought to impose criminal penalties for breaches of Command Agriculture contracts by farmers.

This follows a decision by senators to adopt an Adverse Report by the Parliamentary Legal Committee (PLC) on a statutory instrument promulgated by Minister Shiri that criminalises breaches of a contract between Government and farmers.

Senate's adoption of the Adverse Report means that Minister Shiri has 21 days either to repeal the offending provisions of the statutory instrument or to approach the Constitutional Court for a declaration that those sections were constitutional and set aside the PLC Adverse Report.

In his submission before Senate last week, PLC chairperson Jonathan Samukange said contracts between Government and beneficial farmers were civil matters and not criminal, hence any breaches would require civil remedies.

"The committee still stands on the view that Sections 5, 6 and 7 criminalise the breach of contract," he said.

"Again, I want to pause there and point out that this is our problem that you have a contract between two consenting human beings or beings; Government being a "being" for the purpose of the contract and the beneficiary being also an individual.

"These two parties have agreed that they will go into this contract. They sign the agreement.

"What is happening is that the minister now wants to criminalise what the two parties had agreed to. In our view, we think that it is contravening the rights of the contracting parties."

Samukange said the regulations contravened Section 49 (2) of the Constitution, which states that "no person may be imprisoned on the grounds of inability to fulfil a contractual obligation".

He said the Constitution had outlawed a legal provision where one would be imprisoned for failing to pay a debt.

"Normally, it used to be 90 days that one had to serve, but that has been outlawed," he said.

"The Constitution says if you have entered into contract, it is up to the judgment creditor to find means of getting his debt, but they cannot use the courts to imprison you because you have not committed a crime.

"I am sure some of you may have seen that even the banks are now accepting only title deeds as guarantee, not personal guarantee because it is not a guarantee at all.

"The law should not be there to cause innocent people to suffer. That is not right, it is bad law."

Minister Shiri defended the regulations, arguing that they were meant to secure Government interests on its investment given that it would have extended a loan to a beneficiary expected to pay back.

He said the sections did not criminalise breach of contract nor did it seek to enforce compliance with the provisions of the contract.

"These clauses only criminalise the abuse and misappropriation of inputs by beneficiaries who seek to defraud the State and side market inputs instead of putting the inputs to their required use," said Minister Shiri.

"In essence, this statutory instrument targets those individuals who enter into the Command Agriculture programme with the overarching intention of defrauding Government."

Following Senate's adoption of the Adverse Report by PLC, Minister Shiri should make a decision in terms of the Constitution.

The Fifth Schedule of the Constitution provides that "If, after considering a report of the Parliamentary Legal Committee that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either –

(a) apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) repeal the statutory instrument."