BILL WATCH 26/2015
[20th July 2015]
The General Laws Amendment Bill
The General Laws Amendment Bill [GLA Bill] sets out to amend 126 Acts of Parliament, mostly to bring them into line with the Constitution. The memorandum to the Bill explains only what it calls “the more important” amendments, namely amendments to the Interpretation Act, the Privileges, Immunities and Powers of Parliament Act, the Electoral Act, the Trade Marks Act and the Criminal Law (Codification and Reform) Act.
In Bill Watches 17 and 18/2015 dated 5th and 7th June, Veritas examined the amendments to the Electoral Act and pointed out their inadequacy and incompleteness.
In this Bill Watch we look at the amendments which the GLA Bill proposes to make to the Interpretation Act, the Privileges, Immunities and Powers of Parliament Act. We shall deal with the amendments to the Criminal Law (Codification and Reform) Act in a subsequent Bill Watch.
Amendments to the Interpretation Act
The Bill amends several definitions contained in the Act to bring them into line with the Constitution. The amendments themselves need no comment, but several other definitions should also have been amended, for example the definitions of “Administrative Court” [which is now established under the Constitution], “Police Force” [it is now the Police Service], “Public Service” and “Public Service Commission” [which are now the Civil Service and the Civil Service Commission respectively]. This incompleteness – the amending of some provisions while overlooking others – recurs throughout the GLA Bill and is surprising in a Bill that has been nearly two years in preparation.
The Bill will also insert a new section in the Act setting out rules for interpreting statutes in the light of the Constitution. The new section restates the principle that the Constitution is the supreme law and must prevail over any inconsistent provisions in Acts of Parliament or statutory instruments. It is a principle which is generally accepted in constitutional democracies.
Amendments to the Privileges, Immunities and
Powers of Parliament Act
This Act was promulgated at a time when Parliament consisted of only the House of Assembly [now the National Assembly], and it takes no account of the Senate. The GLA Bill does nothing to rectify this. It should have done so in order to remove anomalies from the Act, for example:
The Act gives the Speaker the same privileges as are enjoyed by Members of Parliament; this is necessary because the Speaker is not a Member of Parliament [section 126(6) of the Constitution]. So under the Act the Speaker, like a Member, has the right not to be sued for what he or she says in Parliament and cannot be summoned to court while Parliament is sitting. The President of the Senate who, like the Speaker, is not a Member of Parliament, does not enjoy these privileges. Omission.
A person who has given evidence before the National Assembly can be given a certificate by the Speaker which exempts the person from being sued for defamation arising out of what he or she told the Assembly [section 13 of the Act]. The President of the Senate cannot issue such a certificate to persons who give evidence before the Senate. Omission.
The GLA Bill makes two amendments to the Privileges, Immunities and Powers of Parliament Act which are questionable on constitutional grounds. Both concern Parliament’s power to impose punishment on its members and other persons:
The Bill amends several sections of the Act to give Parliament, when sitting as a court, power to impose not only fines for contempt of Parliament but also imprisonment for up to two years in default of payment of the fines. What this means is that if a person who has been convicted of contempt fails to pay the fine imposed by Parliament, he or she will have to serve the period of imprisonment which Parliament has specified as a default punishment.
The Bill also gives Parliament power to impose an “administrative penalty” of imprisonment on persons who are guilty of contempt.
The GLA Bill proposes to insert these provisions into the Act despite section 148(2) of the Constitution, which states:
“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.”
The Bill attempts to get round section 148 of the Constitution by two stratagems:
- If a person fails to pay a fine imposed by Parliament, the Clerk of Parliament will send a document to a court setting out the sentence that was imposed on the person, and the court will be obliged to sentence the person, apparently in his or her absence, to the term of imprisonment imposed by Parliament in default of payment of the fine. This procedure – charade might be a better word – cannot convert Parliament’s sentence into a sentence imposed by a court because the court is given no discretion whatever: it will be obliged to impose the prison sentence fixed by Parliament, and it will have to do so without giving the person who is to serve the sentence an opportunity to put his or her side of the story. In reality it will be Parliament’s sentence, not the court’s. And a sentence of imprisonment is unquestionably “in the nature of a criminal penalty”, which is prohibited by section 148 of the Constitution.
- Imprisonment imposed by Parliament for contempt is not an “administrative penalty” as suggested in the Bill. Administrative penalties are monetary penalties assessed and imposed by a supervisory authority, without recourse to a court, to enforce compliance with regulatory legislation. Administrative penalties are imposed on individuals and businesses that have been licensed to undertake regulated activities. A good example is afforded by the financial sector. In the United States, for example, the Securities and Exchange Commission has power to impose swingeing fines on banks that contravene regulations governing their activities in that country. Similar powers are exercised by the Financial Services Board in Britain. In all these cases, however, the administrative penalties imposed are monetary, i.e. fines, not imprisonment. Imprisonment cannot be regarded as an administrative penalty.
Hence the GLA Bill violates section 148(2) of the Constitution in so far as it purports to give Parliament power to impose prison sentences for contempt. It also violates section 49(1) of the Constitution, which gives everyone the right not to be detained without trial. The South African Constitutional Court has held that the word “trial” in the equivalent provision of that country’s constitution [section 12(1)(b)] requires a hearing conducted by a judicial officer in a constitutionally-established court structure. Members of Parliament are not judicial officers in Zimbabwe’s constitutional court system and cannot impose sentences that deprive persons of their liberty.
Amendment of the Trade Marks Act
The GLA Bill will amend the Trade Marks Act to give effect to a treaty known as the Madrid Protocol of 1989, to which Zimbabwe became a party on 11th March 2015. Under the Madrid Protocol, registration of a trade mark in one country leads to its automatic registration in other countries which are members of what is known as “the Madrid System”. So by filing a single application for registration, a trade mark owner can obtain registration in other member countries as well.
To give effect to the Madrid Protocol, the GLA Bill proposes to insert a new section into the Trade Marks Act stating that trademarks registered in accordance with the Protocol will have effect in Zimbabwe as if they had been registered in Zimbabwe under the Act.
The new section goes further than that, however, and gives the Minister of Justice power to amend any provision of the Act in order to bring the Act into conformity with the Madrid Protocol. This is a most undesirable provision, because it will allow a Minister to amend an Act of Parliament – something only Parliament should do. Any amendment the Minister may make will have to be laid before the National Assembly [but not the Senate]. Even so, giving a Minister power to amend an Act of Parliament offends against the principle of separation of powers, which is a foundational value stated in section 3(2)(e) of the Constitution.
The GLA Bill should be amended to remove this provision from the new section. Any amendments needed to bring the Act into line with the Protocol should be made by Parliament – both Houses – not the Minister.
[The GLA Bill is available from addresses below.]
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