SI 133/2016: A necessary evil

Parliament education office says that In Parliament, an amendment is a change to a law that is in existence. Amendments allow for bills to be improved or altered as they progress through the Parliament. In the same way that all bills must be discussed and voted on in the Parliament, amendments must also be discussed and voted on. Amendments can be introduced in either the lower or upper house. Once a bill is assented to by the President and published in the gazette it becomes an Act of Parliament, hence it starts to be regarded as a law.

At times Parliament can introduce new laws by delegation. A minister or President or any committee may be delegated by Act of Parliament to amend and bring sanity to an existing law. Usually this delegated authority results in production statutory instrument as supporting documents for an existing Act of Parliament either on temporal or permanent basis.
Ministerial Statutory instruments have limitations in that they cannot change an existing law or bring a new law. They are just a tool to reinforce, clarify an existing Act. An example is SI 154 of 2010 which failed to stand in court of law because the then minister of Transport Hon Goche tried to sneak in an SI which would have changed the then Traffic Act. This move was rejected by courts though SI 154 of traffic Act later legally came back with drastic changes as SI 129 of 2015.

A Presidential powers based Statutory Instrument or Act may override an existing law or may actually bring a new law into existence. The only downside of this delegated authority is that the laws introduced by Presidential Powers are temporary and last only 6 months.
This article will focus on the delegated authority on the President by Act of Parliament. The Presidential delegated authority is when the President uses Presidential powers to amend, override an existing law or put a new law. This channel is very fast and is mainly reserved for emergency purposes. Its resultant laws are temporal, only lasting not more than 181 days from day of gazetting and not renewable afterwards for the subsequent six months.
The Presidential delegated authority has caused so much noise in Zimbabwe since the 31st of October 2016 when the President used Presidential powers to assent SI 133 of 2016 into law through a government extra ordinary gazette. This article will zone in on this SI 133/2016: its introduction, legality and implications.

THE SOURCE OF FIRE-SI 133/2016
Recently H E President R Mugabe invoked the Presidential emergency temporal powers (chapter 10:20) to amend the Reserve Bank Act (chapter 22:15) providing for the inclusion of bond notes and coins in the Reserve Bank Act. Media has been all over the place castigating or praising this move. Putting emotions and political affiliations aside let's try to understand if really President broke the law, and if he indeed broke the law, what would be the best way forward?
**For the purposes of this write up, the term "constitution" shall refer to the current 2013 twentieth amendment constitution of Zimbabwe.**

THE MILLION DOLLAR QUESTIONS
WHAT IS SI 133/2016
It is a a piece of legislation put forward by His Excellence the President, in terms of section 2 of the Presidential Powers (Temporary Measures) [Chapter 10:20], which is called Presidential Powers (Temporary Measures) Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016.

DID THE PRESIDENT CONFUSE DUTIES OF THE LEGISLATURE AND EXECUTIVE IN ASSENTING SI133/2016?
Section 3(e) of the constitution states that there shall be "observance of the principle of separation of powers;" The constitution here provides for the separation of powers amongst the executive, legislative and judiciary. Allow me to focus just on the legislative and executive:
Section 116 of the constitution defines the Legislature as consisting of the "Parliament and the President Acting in accordance with this Chapter." So what does this mean? This means that:
The President is part of the executive as much as he is part of legislative. Since the President is also part of legislative he then is equally a law maker as described by section 117 of the constitution which states that: The legislative authority of Zimbabwe … exercised in accordance with this Constitution by the Legislature powers to make laws for the peace, order and good governance of Zimbabwe.

In accordance with section 104 of the constitution Ministers and Deputy Ministers are appointed to the executive from among Senators or Members of the National Assembly (which is legislative). Only three people may be appointed by President outside Parliament (legislative). Hence according to section 104(3) of the constitution it effectively means one can be in the executive as well as legislative concurrently.

SI 133 of 2016 is one of many Zimbabwean laws made through this provision of section 117 of the constitution which defines President as a law maker.

Separation of powers as prescribed by section3 of the constitution prohibits the three arms of government from interfering with each other but does not stop one person from belonging to more than one arm of the government at the same time.

CAN PARLIAMENT DELEGATE LAW MAKING POWER?
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 (section 134 of the constitution). This means the President or a Minister (OR any other person delegated to by Parliament) may, acting outside Parliament, make statutory instruments to amend or support any Act in question.

DOES IT MEAN THE PRESIDENT AND MINISTER HAVE BECOME A LAW UNTO THEMSELVES?
No. the minister has to submit an SI to Parliament for debate. Other procedures would then ensure, but today let's tunnel our focus to the Presidential powers instituted legislations.
After amending or putting a new law using Presidential powers (10:20), section 4 (1) requires that copies of all regulations made in terms of section two of Presidential powers Act be brought before Parliament no later than the eighth day on which Parliament sits next after the regulations were made for debate and scrutiny.

DOES THE PARLIAMENT HAVE THE POWER TO OVERTURN PRESIDENTIAL POWERS LAW?
Well section 4 (2) states that If Parliament resolves that any regulations that have been laid before it in terms of subsection (1) should be amended or repealed, the President shall forthwith amend or repeal the regulations accordingly. If any regulations have been amended or re-pealed in terms of subsection (2), the President shall not, within a period of six months thereafter, make any further regulations in terms of section 2 that are identical in substance to the regulations before they were so amended or re-pealed.

So effectively yes the Parliament has authority to overturn any law tabled before it if it feels that the law is ultra vires the dictates of the constitution or another law in existence.

DOES IT MEAN SI 133/2016 IS NOT YET LAW TILL PARLIAMENT SAYS SO?
According to section 132 of the constitution an Act of Parliament comes into operation at the beginning of the day on which it is published in the Gazette, or at the beginning of any other day that may be specified in the Act or some other enactment.

SI 133/2016 became law on 31 October 2016 the day it was published in the extra ordinary gazette. SI 133/2016 has no commencement date hence the use of date of gazetting as the effective commencement date.

IS THE USE OF PRESIDENT TEMPORAL POWERS ACT LEGAL ACCORDING TO NEW CONSTITUTION?
According to the national constitution section 113(1) states that "the president may by proclamation in the gazette declare that a state of public emergency exists in the whole or any part of Zimbabwe." Further in section 113(4) the constitution states that the laws gazetted using emergency powers are temporal and can only last for three months from date of gazetting.
The presidential powers section 2 (1)(a) states that when it appears to the president that a situation has arisen or is likely to arise which needs to be dealt with urgently in the interest of public order and safety, the ECONOMIC interest of Zimbabwe or general public interest. Section 2(2) of the presidential powers spells out that presidential powers can be used in a Situation that cannot be dealt with in terms of other law of the land.

Section 2 of the presidential powers is legal according to section 113 of the national constitution. This section 2 of presidential powers is in tandem with the constitution which allows president to use presidential powers for any situation they feel it's urgent or needs. This situation could be anything from military, moral to ECONOMICAL aspects.

CAN WE CHALLENGE THE LEGALITY OF THE PRESIDENTIAL POWERS ACT USE
According to section 113(7) of the Zimbabwean Constitution it is a right of any Zimbabwean to approach the Constitutional Court to determine the VALIDITY of declaration of the state of emergency or any extension of a declaration of state of public emergency.

This section gives us the right as Zimbabweans to approach the courts with the argument that the presidential powers were used in a non-emergency situation NOT to argue that the presidential powers temporal act is ILLEGAL.

WHO DECIDES IF THE SITUATION NEEDS PRESIDENTIAL POWERS?
Now that we are clear that the President LEGALLY used the Presidential powers in accordance with the constitution, the question that hangs in balance is: who decides what an emergency is or isn't using the Presidential powers Act (chapter 10:20)?

Well section 2 of chapter 10:20 states that: (1) When it appears to the President that—
(a) a situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of de-fence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and
(b) the situation cannot adequately be dealt with in terms of any other law; and
(c) because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation;

Then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

In summary the President has the initial and final say to whether a situation is an emergency or not when amending or assenting a law. Parliament will only regulate this judgement at least 8 days later.

HOW LONG WILL THESE PRESIDENTIAL DECREED LAWS BE EFFECTIVE?
Section 6 of chapter 10:20 states that

(1) Unless they are earlier repealed, regulations made in terms of section two shall expire and cease to have any effect immediately before the one hundred and eighty-first day following the date of commencement of the regulations.

Also section (3) states that if any regulations have expired in terms of subsection (1), the President shall not, within a period of six months thereafter, make any further regulations in terms of section two that are identical in substance to the expired regulations.

So if this SI 133/2016 sails through parliament, it will be in place for a maximum period of six months. It may be recalled and cancelled even before six months. But good news is that after those first six months this SI cannot be re-introduced using the Presidential powers. We will have to wait for a further six months to re-use the Presidential powers if there has been no other solution put in place.

Put simple, this SI 133/2016 (if Parliament allows it to sail through) will expire in April 2017. The government will then have to wait for October 2017 to use the Presidential powers (temporary measures) Act to reintroduce the bond notes again.

WHY DID THE PRESIDENT OPT FOR THE USE OF PRESIDENTIAL POWERS?

1 The Reserve Bank Act chapter 22: 15 could not be quickly amended by the ministerial powers as it needed changing of the said Act since the Reserve Bank Act had no provision for bond notes. An SI can-not change an existing Act but can only be used to reinforce, highlight or remove a section within the provisions of the Act. A ministerial SI cannot introduce a new law in the Act.

2 President could have felt that the monetary situation was an emergency and needed immediate attention.

3 President may have just been flexing his muscles to see how far they could be tolerated.

4 For fun, maybe he was bored.
Whatever reason we may conclude for ourselves, it's the prerogative of the President to tell us what he wants to tell us. We only listen and our jaws drop in awe, anger and frustration.
Putting all this legal explanation aside, the facts emerging are:
FACTS ON THE GROUND

1 SI 133/2016 has a strong legal standing so far.

2 The incoming bond notes are not good for our economy.

3 I am totally against bond notes introduction as I feel they are not the solution.

4 Bond notes are just another ZIMDEF waiting to happen.

5 Our ONLY hope now lies with Parliament rejecting this piece of legislation this week

6 I pray His Excellency reads this write-up and thinks twice about SI 133/2016. Mr President we know you have the power, but we are the ones feeling the brunt at the end of the day.

7 Zanupf has failed. It must go, Iam not sure where but in the furthest parts of our universe I guess.

8 Before you go ZanuPF, I pray you vote against this SI 133/2016 when it gets tabled. Not to embarrass His Excellency and the Honourable Minister or Governor but to save the little kid in remote areas of the country who will be hit hard by ripple effects of introduction of bond notes.

9 Our current constitution is not people oriented but was a ZanuPF-MDC GNU marriage of convenience document and must be re visited and revised by sober minds.

CONCLUSION
SI 133/2016 is very legal according to the Zimbabwean Constitution section 113.
Infringement of human rights is over shadowed by the immediate security concern facing the nation as a result of liquidity crunch. The Zimbabwean constitution section 1133 supports use of presidential powers under emergency condition. Having legal battles against validity of introduction of bond notes is still within one's right but it's the result that counts. President has legal grounds to assent that law.

Most Zimbabweans are opposed to this introduction of bond notes. We feel the government is not telling us the truth. Our only hope now is that the SI does not go through Parliament. We feel Bond notes are likely to result in inflation as they may replace the already scarce US dollar.
The pure solution to our crises problem (besides removing zanupf) in use of plastic money. The government must instil public and business people confidence in use of plastic money through proper banking laws and eradicating the Mr 50-bedroomed-house and the Mr ZIMDEFs of this world from warming their long fingers in our banking coffers. It's not healthy to find people withdrawing hard cash from the bank, just to keep it at home. Anyway this was not an economic write up. Just wanted to tell you that the sooner you accept the bond note in your mind, the less stress you will have and the longer your life will be on earth.

No country can survive without emergency Presidential powers. They are a security measure, it's only that when one is in an opposition party we easily cease being a government in waiting but instead become a disgruntled OPPOSING party. That's where we lose it.

Zimbabwe security comes first before one can even think of the throne. If one's aim is to gain the throne so as to remove Presidential powers Act then I pray to God you don't get such a chance. It's bad to abuse these Presidential powers, it's even worse to remove them. SI 133/2016 is very bad I agree, but maybe it's a necessary evil. Time will tell.
BY MANGOUTHU MBELE (0773 461 120)