CONSTITUTION WATCH 14/2006
[26th July 2016]
Is Statutory Instrument 64 of 2016 Constitutional?
Consultation Necessary before Publication of Statutory Instruments
On 17th June the Minister of Industry and Commerce published a statutory instrument [SI] – the cumbersomely-named Control of Goods (Open General Import Licence) (No 2) (Amendment) Notice 2016 (No 8), Statutory Instrument [SI] 64 of 2016 – which effectively prohibited the importation of a wide range of goods, except under licence granted by the Ministry. The instrument provoked violent reaction from cross-border traders and their sympathisers in Beitbridge, and may have served as a catalyst for further disturbances in Harare, Bulawayo and elsewhere.
Obviously the government did not expect the instrument to provoke such a reaction, which it might have anticipated had it consulted more widely before publishing the instrument. This raises several questions:
- Does the Constitution require a Minister or other authority to consult anyone before publishing a statutory instrument?
- If so, was there sufficient consultation before SI 64 of 2016 was enacted?
- Is SI 64 of 2016 constitutional?
- What procedures should be adopted to ensure that before statutory instruments are published there is adequate consultation with interested parties and proper assessment of their impact?
In this Constitution Watch we shall seek to answer these questions, but first we should explain what we mean by a statutory instrument.
Many Acts of Parliament give a Minister or some other authority the power to make regulations, by-laws, rules and similar laws. These regulations etc are called “statutory instruments”, and when they are validly made in terms of their parent Act and are published in the Gazette they have the full force of law.
Constitutional provisions regarding statutory instruments
Section 134 of the Constitution says that an Act of Parliament can delegate power to make statutory instruments for purposes laid out in the Act, but:
- Parliament’s primary law-making power must not be delegated,
- the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument, and
- statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.
The importance of these requirements will become apparent later.
1. Does the Constitution require consultation before a
statutory instrument is published?
Section 134 of the Constitution does not say there must be consultation before a statutory instrument is published, but section 141 says that Parliament must—
“facilitate public involvement in its legislative and other processes and in the processes of its committees”,
“ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable.”
This provision applies only to Bills, which are draft Acts of Parliament; but it would be strange if the constitution-makers had intended Parliament itself to consult widely before passing Acts of Parliament while allowing Ministers who make statutory instruments under those Acts to do so without consultation. Arguably all Acts of Parliament that confer power to make statutory instruments must now be construed as requiring the Ministers who make the instruments to ensure that interested parties are consulted about them to the same extent as applies to Acts of Parliament.
It is significant that among the principles of good governance, stated as founding values in section 3 of the Constitution, are:
“a multi-party democratic political system” and
“transparency, … accountability and responsiveness”.
The democratic political system envisaged by the Constitution is one that is transparent, accountable and responsive and makes provision for public involvement in the law-making processes. Statutory instruments are an important part of the law-making process, and the public must, where practicable, be involved through consultation.
2. Was there sufficient consultation before SI 64/2016 was
The Minister has said that before publishing SI 64/2016 he consulted some local manufacturers. However they represent only one small section of the people affected by the instrument. There are many others: cross-border traders [and they have been estimated to number three million and for many their livelihood has been imperilled] and indeed, all importers are also affected by the instrument. So too are all consumers, including beleaguered civil servants, who are likely to suffer when prices rise as they inevitably will if local manufacturers are freed from foreign competition. Consumers, in other words, will have to take on the task of propping up uncompetitive local producers, and they should have been asked if they were prepared to shoulder that burden.
None of these interested parties were consulted, apparently, and if they were not the consultation process was inadequate.
Since the SI was published organisations such as the Employers’ Confederation of Zimbabwe (EMCOZ) have spoken out against it. They have pointed out that cross-border traders will find import permits a serious obstacle to their activities, since permits cost $30 and are valid for only three months. EMCOZ has also noted that prices will inevitably rise since local manufacturers will no longer have to compete with cheaper foreign imports. Some doubt has also been expressed about the capacity of local manufacturers to supply goods that can no longer be imported.
Had there been proper consultation before the instrument was published, all these points could have been expressed and considered.
3. Is SI 64/2016 constitutional?
Lack of consultation
If, as suggested above, there was inadequate consultation before the statutory instrument was published, then the instrument is unconstitutional unless wider consultation would have been inappropriate or impracticable [see section 141 of the Constitution cited earlier]. Far from being inappropriate, wider consultation might have averted the violence in Beitbridge. And it was eminently practicable: cross-border traders and other importers could easily have been consulted, even if the consultation consisted merely of a notice in the press calling on them to lodge [peaceful] objections.
Apart from lack of consultation, there are two other grounds which render SI 64 of 2016 unconstitutional.
Invalidity of Control of Goods Act
The first ground is that the Control of Goods Act, under which the instrument was made, is itself unconstitutional.
The Control of Goods Act confers enormous legislative powers on the President. Under sections 3 and 4 of the Act he can make regulations controlling—
the import or export of goods,
the distribution, disposal, purchase and sale of goods,
the prices at which goods may be sold,
charges for services relating to goods or for delivery of goods,
the rationing of goods.
In effect, the Act gives the President power to make regulations controlling the entire Zimbabwean economy, and he is permitted to delegate these powers to any Vice-President or Minister [section 3(3) of the Act].
By conferring such vast powers on the President and his Ministers the Act is clearly unconstitutional. If ever there was a delegation of Parliament’s primary law-making power prohibited by section 134 of the Constitution, this is it. Furthermore, no limits to the powers are specified, nor are the applicable principles and standards, as required by section 134.
If the powers which the Act confers on the President are unconstitutional, then so too are any statutory instruments published in the exercise of those powers – including SI 64 of 2016.
Conflict with Zimbabwe’s international obligations
Yet another reason why the instrument is invalid is that it conflicts with Zimbabwe’s international obligations, particularly Article XI.1 of the General Agreement on Tariffs and Trade (1994) [GATT], which prohibits member States (and Zimbabwe is a member) from instituting import restrictions through licences on the importation of goods from other member States. None of the allowable exceptions to this prohibition apply to SI 64 of 2016. The SI also goes against article 7.1 of the SADC Protocol on Trade, which prohibits member States from applying any new quantitative restrictions on imports – “quantitative restrictions” are defined as including restrictions made effective through licensing. The SI also contravenes the Common Market for East and Southern Africa [COMESA] treaties, to which Zimbabwe is a party. Obviously SI 64 of 2016 comes as a slap in the face for the other member States of SADC and COMESA. Furthermore, Zimbabwe is signatory to a number of bilateral trade agreements with countries such as Zambia, Botswana, Namibia, Malawi, South Africa and Mozambique, and the governments of these countries were not consulted.
Even if the wide powers conferred on the President and his Ministers by the Control of Goods Act were constitutional – which, as indicated above, they are not – Parliament can never have intended the powers to be exercised in a way that conflicts with Zimbabwe’s international obligations under international treaties to which this country is a party.
For all the above reasons SI 64 of 2016 is invalid. It is deplorable that the Minister should have published a statutory instrument with such far-reaching and potentially explosive consequences on such shaky legal foundations. The instrument illustrates the dangers of Parliament giving extensive legislative powers to the Executive. If the instrument had been drafted as a Bill and introduced into the National Assembly to be passed as an Act of Parliament there would have been no problems as to its legal validity, and its potential consequences could have been thoroughly debated before it became law.
Parliament should try to devise ways of ensuring that statutory instruments with important economic and social effects are not published before there has been adequate public consultation. Perhaps a system can be put in place under which Ministers submit important statutory instruments to the Parliamentary Legal Committee [PLC] and relevant portfolio committees, so that the committees can consult the public about them in the same way as they do with Bills.
It is too late for that with SI 64 of 2016, unfortunately; but the PLC has not yet considered the SI and when it does so it may rule the instrument invalid on the grounds stated above.
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