General Laws Amendment Bill, 2015

GENERAL LAWS AMENDMENT BILL, 2015

EXPLANATORY MEMORANDUM

The purpose of this Bill is to ensure that all Acts of Parliament in force before the new Constitution became effective are, to the extent of any inconsistency with the Constitution, aligned with the Constitution. The changes are mostly of a minor nature. The opportunity has also been taken to resolve some minor anomalies in the statute book. The more important amendments are the subject of the commentary below.

PART 1: AMENDMENT OF INTERPRETATION ACT
Item 1
These amendments update the definition section of the Interpretation Act to amend or include definitions of tenns found in the new Constitution.
Item 2
The principle of the supremacy of the Constitution as a fundamental principle of statutory interpretation is embodied in section 2(1) of the new Constitution:
"This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency''. Before the enactment of this principle. statutory interpretation was premised on the concept of the sovereignty of Parliament, whose supremacy in the legislative sphere was qualified only by express words in the constitution derogating from it. A textual approach to statutory interpretation suits this concept, since the words in which Parliament expresses itself are definitive. The principle of the supremacy of the Constitution does not abolish this textual approach, except to the extent that the values underlying the statutory text in question are shown to be clearly in conflict with the values enshrined in the Constitution. In that event, the sovereignty of the Constitution trumps that of Parliament, requiring a value-based approach to statutory interpretation which ensures that the values of the Constitution prevail over those of the statutory text. This amendment to the Interpretation Act includes a new section giving effect to the principle of the supremacy of the Constitution.

PART V: AMENDMENT OF THE PRIVILEGES, IMMUNITIES AND POWERS OF PARLIAMENT ACT
Section 148 of the new Constitution fundamentally alters the power of Parliament to defend its dignity and prestige in face of contempt towards it and breaches of its privileges. The relevant portion of the constitutional provision provides that "no ... Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of Parliament''.

Item 6
Before the new Constitution Parliament bad d1e option of requesting the Attorney-General (now the Prosecutor~General) to launch a prosecution in respect of any offence over which Parliament could exercise its autonomous criminal jurisdiction. This amendment strengthens that provision in the light of the new constitutional restriction on Parliament's penal power for certain offences over which it had jurisdiction. For any imprisonable offence Parliament might fmd it is appropriate to invoke the aid of the Prosecutor-General rather than for it to try the offence itself, since it can only impose a fine.

Items 7, 8, 9, 10

These amendments allow Parliament to fix a custodial sentence as an alternative to the non-payment of any fine imposed by it. This does not violate the spirit of section 148 of the Constitution (in any event, the sentence of imprisonment must be confirmed by a court of law; see item below). A fine in the nature of a criminal penalty, even if not imposed in conjunction with a custodial sentence, is generally backed up by the alternative of imprisonment if the fine is not paid (see section 347 of the Criminal Procedure and Evidence Act): the reason for this is that it is very expensive and time consuming to recover a fine through civil process in the civil courts: often the costs involved exceed the amount of the fine (and if the fine is pitched too high it may encounter constitutional objections as being disproportionate); furthermore, because the offender is free of the fear of imprisonment, there is no incentive for him or her to pay it timeously, if at all.

In the proposed amendments, the level of fines that may be imposed by Parliament are generally higher than those that might be imposed by a criminal court.

Item 13

Where-

- Parliament chooses to exercise its autonomous quasi-judicial jurisdiction and imposes penalty of imprisonment in default of the payment of a fine imposed by Parliament, and

- The offender fails to pay the fine timeously or at all;

the alternative penalty of imprisonment must be confirmed (in an expedited way) by a court of competent criminal jurisdiction. This amendment provides accordingly.

Item 14

At law there is a distinction between a "criminal" and an "administrative" penalty of detention or imprisonment. The administrative penalty of detention is very necessary for the good governance and conduct of hearings before bodies like Parliament and its committees, and for hearings before other constitutional or statutory commissions (such as commissions of inquiry and the Human Rights Commission. which has a similar power): accordingly, the administrative penalty of detention is retained in the amendments, but drastically curtailed: a detained person cannot be detained for a period beyond the next sitting of a House after the sitting during which he or she was detained. This curtailment is necessary because the new Constitution, by depriving Parliament of the power to impose sentences of imprisonment, cannot be presumed to be favourable toward any exercise by Parliament of the power of detention except in restricted circumstances (admittedly, the present power given to Parliament under the Act is perhaps too expansive).

PART VI: AMENDMENT OF ELECTORAL ACT

Section 239(c), (d) and (e) of the new Constitution gives to the Zimbabwe Electoral Commission the  responsibility for registering voters, compiling voters' rolls and registers and ensuring the proper custody and maintenance of voters' rolls and registers. In doing so it may "give instructions to persons in the employment of the State or of a local authority for the purpose of ensuring the efficient, free, fair, proper and transparent conduct of any election or referendum". The most important employee of the State in this respect is the Registrar-General, who is given statutory responsibility for national registration and the maintenance of registers of births, deaths, marriages and citizenship. These amendments are primarily concerned with bestowing the function of registration of voters upon the Commission while ensuring a proper coordination of this function with those of the Registrar-General as the custodian of the registers of births, deaths, marriages and citizenship.

Item 1

This amendment repeals the definition of "Registrar-General of Voters", whose office will be abolished by these amendments.

Item 2, 5 and 14

These amendments remove redundant references to "special voting", which was abolished by the Electoral Amendment Act, 2014.

Item 3, 4, 6, 7, 8, 9, 10, 11 and 12

This amendment confers on the Zimbabwe Electoral Commission, through the agency of the Chief Elections Officer, the function of the registration of voters (including claims for transfers of registration) previously exercised by the Registrar-General of Voters, whose office will be abolished. At the same time it requires the Commission and the former Registrar-General of Voters, in his or her capacity as the Registrar-General of Births and Deaths, the Registrar-General of Citizenship and the Registrar-General of Registrar-General of National Registration, to cooperate with each other to ensure that their respective databases, as they relate to the eligibility or potential eligibility of voters, are in harmony with each other.

Items 13, 17 and 18

These amendments update references to office, terms and provision employed in the old Constitution which have been overtaken by the new Constitution.

Item 16

This amendment imposes a duty upon roving political party election agents not to disrupt polling in the exercise of their powers and privileges to enter any polling station.

PART XX: AMENDMENT OF THE CRIMINAL LAW (CODIFICATION AND REFORM) ACT

Items 1, 2, 3, 4, 5, 9, 10, 11, 14, 15, 16

These amendments simply replace the expression "shorter period" of imprisonment (that is to say, as an alternative to life imprisonment) by the more accurate expression "definite period of imprisonment".

Items 6, 7, 17, 28 and 29

These amendments replace the designation "Prison Service" by the constitutional designation "Prisons and Correctional Service".

Item 8

Section 48 of the Constitution protects the right to life but states that "a law may permit the death penalty to be imposed.'' The Constitution itself does not impose the death penalty; it only allows a law to do so, and if a law does provide for the death penalty the law must make its imposition subject to certain restrictions:

- The penalty can be imposed only for murder committed in aggravating circumstances.

- It cannot be made a mandatory penalty but must allow a court a discretion to impose it.

- It cannot be imposed on women;

Accordingly, the section in the Criminal Law Code providing for the crime of murder is amended to provide that the death penalty for murder is competent only were the crime is committed in certain aggravation circumstances, and even then a court has a discretion to impose a sentence of imprisonment for life or a prison sentence of at least 20 years. The other restrictions on the death penalty contained in the Constitution and the Criminal Procedure and Evidence Act are also referenced.

Item 12

Section 3 of the Constitution sets forth the founding values and principles of Zimbabwe, among which the recognition of the rights of women, the elderly, youths and children (paragraph (i)).

At present, the crime provided for in section 70 of the Code ('Sexual intercourse or performing indecent acts with young persons") prevents the sexual exploitation of younger persons. It is implicit from the wording of this section that only adults may be prosecuted for this crime, because the subject of the crime is a "person'' and its object is a "young person" (defined in section 61 of the Code as a person below the age of 16). However, it is in society's interest to protect all young persons from being

"'sexualised" prematurely, regardless of whether the perpetrator is, for instance, a boy of 15 who has "consensual" sexual intercourse with a girl of 13. Where two young persons aged between 12 and 16 engage in sexual intercourse or an indecent act, it is proposed that neither of them should be prosecuted for the crime of sexual intercourse or performing an indecent act with a young person, unless the report of a probation officer finds that it is proper to prosecute one of them for the offence.

Item 13

Section 89(3) of the Code provides that, in sentencing an offender for assault, the court must have regard to certain factors which may have aggravated the offence, such as the age of the person assaulted, and the degree of force or violence used. For the sake of comprehensiveness, the extent of physical injury inflicted upon the person assaulted should also be specifically included as a factor to be considered in aggravation of the offence of assault.

Item 18

The definition of "public officer" in section 169 of the Criminal Law Code refers to the redundant office of "provincial governor''. The definition is amended in conformity to Chapter 14 of the Constitution, provides in Part 2 for the eventual appointment of chairpersons of Provincial Council.

Item 19

The "commencement of the execution" standard for distinguishing between an "attempt" to commit a crime and mere "preparation" raises more problems than it solves, and suffers from the great disadvantage that it has never been canvassed by our courts. It is proposed to revert to the previous Common Law position, whereby all acts committed with the intention of furthering a crime would amount to an attempt, and the courts are left to decide whether a person has taken any "substantial" step towards its commission that would justify him or her being convicted of attempt.

Items 20 and 21

The original position of the Ministry of Justice and the Attorney-General's Office when formulating the Criminal Law Code was to try to simplify the gradations of responsibility where two or more persons are associated with a crime. Accordingly, if a person authorises a crime but is not present at its commission, it was decided to treat him or her simply as an accomplice (since, in principle, an accomplice is guilty of the same crime as that committed by an actual perpetrator). However, it is now felt that the position as it existed in the Common Law should be reverted to. This holds that someone who authorises an actual perpetrator to commit a crime ("the principal'') should be distinguished from a mere accomplice in the ordinary sense of that word. An accomplice (in the ordinary sense) is often simply a "follower", "assistant" or "attendant" of an actual perpetrator, whereas the principal is the "intellectual author" of the crime. This distinction makes a difference in sentencing, because courts rarely punish "accomplices" to the same extent as principal and actual perpetrators.

Accordingly, in addition to actual perpetrators, co-perpetrators, accomplices and accessories, special provisions are sought by these clauses co be inserted in Chapter XIII of the Code to cover "principals", without, however, blurring the distinctions between all aforementioned types of criminal association.

In addition, certain sections in Chapter XIII of the Code have been reframed to reinforce the presumption of innocence. Finally, in cases of murder where the death penalty may be imposed, it is important to include a cautionary provision reiterating that sections 337 and 338 of the Criminal Procedure and Evidence Act apply to the sentencing of principals and co-perpetrators (including actual perpetrators).

Item 22

Section 197(3)(a) of the Criminal Law Code (which provides that where an actual perpetrator has defence that excuses or reduces the liability of that person the accomplice will still be liable as an accomplice as if the other person were an actual perpetrator) is an incorrect statement of the common law insofar as it refers to "accomplices'' in the ordinary sense of that word. Accomplice liability is dependent upon the liability of the actual perpetrator; accordingly, a person cannot be an accomplice if the actual perpetrator has a complete defence to the crime. The confusion arises here because the term "accomplice" as presently used in the Criminal Law Code encompasses also a "principal" who authorises the crime without actually committing it.

However, if one substitutes the word "accomplice" in subsection (3) by the word "principal", subsection (3) becomes a correct statement of the qui facit per alium facit per se principle ("the acts of an agent are the acts of a principal"). For example, if a principal uses a 6-year old child to commit a theft for him, the child will have a complete defence to the crime, but the principal will be liable as if he himself had committed the crime.

Because the qui facit per alium facit per se principle is embodied in subsection (3) of the new section 196A, it is proposed that subsection (3) should be repealed and substituted by a different subsection which makes it clear that if an actual perpetrator is not found and brought to trial, another person can be convicted as an accomplice.

Item 23

The types of assistance referred to in section 198 (e), (f), (g) and (h) of the Criminal Law Code need to be distinguished from cases where the person rendering them may be liable as a co-perpetrator rather than as an accomplice. This amendment provides accordingly.

Item 25

It is felt that section 200 of the Criminal Law Code should be re-crafted in a manner more consistent with the pre-existing Common Law, that is to say, principals or accomplices should not escape criminal liability entirely where they simply withdraw from participation in a crime before it is committed, if the crime is subsequently committed without their participation. A separate provision is also required to cover withdrawal from crimes by co-perpetrators. Co--perpetrators, who are present at the scene of the crime, may only escape liability for tl1e crime only if they take action to prevent the commission of the crime. Even where they do, they must still be liable for conspiracy or attempt to commit the crime.

Item 30

A person who is convicted of a crime in specified aggravating circumstances that may render him or her liable to severer punishment is in jeopardy of double punishment if, at the same time, he or she is also convicted of any other crime whose factual elements of the same criminal acts is disproportionate punishment which may amount to "cruel'' or "inhuman'' punishment contrary to section 53 of the Constitution. Accordingly, a new section needs to be included for the avoidance of double penalisation here aggravating features of one crime are elements of another crime concurrently charged.

PART CXIV: AMENDMENT OF TRADE MARKS ACT

The purpose of this amendment is not constitutional alignment but timeous compliance with our international treaty obligations with respect to intellectual property rights, in particular, trade marks. By this amendment Zimbabwe will accede to the World Intellectual Property Organisation (hereinafter referred to as "WIPO") Madrid Protocol concerning the International Registration of Marks (hereinafter referred to as the "Madrid Protocol"). The Madrid Protocol aims not only to simplify but also shorten the process of registering an international trademark by permitting the submission of one application to the International Bureau at WIPO that seeks protection in several countries.


 

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