SI 50: Govt flops legal litmus test

FOLLOWING an avalanche of Statutory Instruments gazetted by government in recent months, another controversial SI 50 of 2021 failed a litmus test of constitutionality, as it flagrantly violates Sections 71 and 74 of the Constitution.

Local Government, Urban and Rural Development minister July Moyo published a legal notice ordering thousands of people occupying 12 940 hectares of Chilonga communal land in Chiredzi, south-eastern Zimbabwe, to immediately vacate their ancestral lands. This article is part of an investigation in collaboration with Information for Development Trust (IDT), a non-profit organisation helping the media to probe corruption and bad governance.

The SI was gazetted to pave way for Dendairy Lucerne production, sparking widespread fury from the Shangaan community in the arid Chilonga communal lands.

Section 71 of the Constitution provides for property rights to every person, while Section 74 prohibits eviction in the absence of a court order.

"Subject to this section to Section 72, no person may be compulsorily deprived of their provide expect where the following conditions are satisfied a) the deprivation in terms of the law of general application b) the deprivation is necessary for any the following reasons (I) in the interests of defence, public safety, public morality, public health or town and country planning or (ii) in order to develop or use that or any other property for a purpose beneficial to the community," Section 71 of the Constitution reads.

The Parliamentary Legal Committee (PLC) wrote a letter on Tuesday to Moyo asking him to revoke SI 50. However, the following day, the minister issued another SI 163A of 2021 stating that the Chilonga project was an irrigation scheme.

However, legal experts declared the new SI 163A as ultra vires the constitution.

Earlier this year, the PLC issued an adverse opinion on SI 25 of 2021 citing irregularities in gazetting the SI that increased fines for breach of Covid-19 regulations.

The process of instituting an SI entails that through subsidiary legislation (Section 34 of the Constitution) while an Act of Parliament may delegate power to make Statutory Instruments, it is the primary role of parliament to make laws. The Constitution allows for SIs to be gazetted first before they are scrutinised by the PLC.

While they are important pieces of the law that are useful in times of emergencies where Parliament cannot meet to discuss matters, legal experts say the PLC must be allowed to play its role of scrutinising SIs before they are gazetted.

A member of the PLC and Chitungwiza South MP Maxwell Mavhunga condemned SI 50 of 2021 that seeks to evict Chilonga people.

"The problem is that ministers have too much power. We meet once every month to check on these Sis, that will have been published. It is unfortunate that by the time we issue an opinion, some of the SIs will be in effect. These SIs should be scrutinised first before gazetting. For example, the Chilonga SI, it is unconstitutional; the people are suffering," he said.

Law lecturer at Kent University in the United Kingdom Alex Magaisa said dire consequences could have been avoided if SI 50 of 2021 went through proper legal channels.

He said whereas the PLC can scrutinise legislation (for example Bills) before they become valid legal instruments, there is a leeway for the executive to make law before input from the PLC.

"That is the loophole. I think it's Section 152 (3) (c) which says the PLC must scrutinise everything published in the gazette. There is another provision, subsection (e) which says the PLC should examine every SI that has been referred by an authority empowered to make the SI," he said.

"They (Sis) are important as they used the world over. It allows the executive to have laws to deal with urgent situations like the Covid-19 pandemic. These are situations for which they are designed but there are always abuses of SIs. For instance, the Chilonga SI 50 which is affecting people after someone just sneaked through the instrument."

Zimbabwe, however, is not the only African country using SIs as there are other authoritarian governments who abuse the instruments.

A Ugandan lawyer Kiiiza Eron said subsidiary legislation like SIs should be scritunised before gazetting. In Uganda, he said, an SI is thoroughly examined in the shortest time possible to make sure it aligns with the constitutional provisions.

A statutory instrument is law made by the executive arm of government - President and ministers without parliamentary enactment.

Eron said: "The statutory instrument is prepared by the Cabinet secretary or body with power to make them, e.g, a commission. This is after consultations with stakeholders. The statutory instrument is then presented to the clerk of parliament with the explanation memorandum. It's then presented before a legal affairs committee of parliament. This is because a statutory instrument is delegated legislation.

"The SI is then gazetted. [Section 16 of the interpretation Act.] This is to enable the SI to take effect. When a new law is passed, it must be gazetted as it's the practice in Uganda before it takes effect. The S.I takes effect as provided by the commencement date. If the date is not provided then it's given on the date of publication in the gazette. So basically, the procedure is almost the same save for the style of doing it," he added.

A Botswana lawyer, Topiwa Chilume said the procedure was the same with Zimbabwe.

"There is nothing wrong with the process. The only problem is that voting is done along party lines and not necessarily on merits of the motion," he said.

Another lawyer from Zambia Joe Nkadaani criticised the executive for usurping powers of parliament.

"Regarding the enactment of SIs; I think it is a good practice in that parliament is usually busy and cannot make the laws that are require immediate attention as in the Covid-19 era. The making of laws through SI comes in handy and as mechanisms to reopening to emergency laws," he said.