BILL WATCH 48/2016
[1st November 2016]
Bond Notes Regulations made under Presidential Powers Act
Yesterday, Monday 31st October, the Government gazetted regulations intended to validate:
the controversial forthcoming issue of bond notes by the Reserve Bank, and
more than a little belatedly, the bond coins previously issued by the Reserve Bank and still in circulation; and
the status of both bond notes and bond coins as legal tender in all transactions.
The full title of the regulations is Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016. They were gazetted as Statutory Instrument [SI] 133/2016 [available from Veritas – please click on this link to the Veritas website].
Press Statement by Minister Chinamasa
In a related Press Statement also issued yesterday the Minister of Finance and Economic Development, Patrick Chinamasa, asserted that the Reserve Bank already has power to issue bond notes under section 7 of the Reserve Bank of Zimbabwe Act but went on to explain the Government’s resort to the Presidential Powers (Temporary Measures) Act in the following terms:
“Given the criticality of the issuance of Bond Notes as legal tender to the recovery of our economy and also the controversy that has surrounded the subject matter, it has been decided that the legality of Bond Notes as legal tender in Zimbabwe should be put beyond any measure of doubt. It is to this effect that the President has today gazetted Statutory Instrument 133 of 2016, Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016. The measures that have been gazetted under Presidential Powers Regulations will fortify and underpin the existing legal framework for the issuance of Bond Notes.”
The Press Statement also said that the Reserve Bank will immediately start the process towards issuance of bond notes as legal tender in Zimbabwe. This will begin with media publicity to inform members of the public on such topics as the denominations, the design, the form, the material and the security features of the notes. The actual issue of the bond notes will come after the media campaign. [The full Press Statement is available from Veritas – please click on this link to the Veritas website.]
Use of Presidential Powers (Temporary Measures) Act
Regular readers will not need reminding that the Veritas position is, and has been since 2013, that the Presidential Powers (Temporary Measures) Act is unconstitutional in its entirety. But the Government has continued to use it to gazette regulations covering a fairly wide range of controversial issues. So far, no-one has launched a serious legal challenge to the Government’s position. Reasons for the Veritas position are stated in Constitution Watch 1/2014 of 25th January 2014 [available from Veritas – please click on this link to the Veritas website]
A temporary measure only
As the title of the Presidential Powers (Temporary Measures) Act suggests, and as the text of the Act confirms, regulations made under the Act are temporary measures only. Unless confirmed by Act of Parliament they expire after 180 days. If, as must be the case, the Government intends bond notes to be a feature of life in Zimbabwe for longer than 180 days, it will have to go to Parliament with an appropriately worded Bill.
A rushed job?
Although the introduction of bond notes has been seriously talked about by the Governor of the Reserve Bank and the Minister of Finance and Economic Development for several months, SI 133 bears signs of hasty preparation. For instance there are two section 2s. And in section 3(1) – which should be 4(1) – of the regulations the reference to “section 44A of the principal Act as inserted by these regulations” should have been to section 44B. Section 44A has been in the Act for some time. It is section 44B that is inserted by these regulations.
Can the SI be challenged?
Yes, on at least three grounds:
As we suggested above, the Presidential Powers (Temporary Measures) Act, under which the SI was made, is unconstitutional. No SIs can validly be made under it.
Even if the Act were constitutional, it empowers the President to make regulations to deal with situations which are so urgent that it is “inexpedient” to wait for Parliament to pass an Act dealing with them. That was not the case here. There was ample time after bond notes were first mooted for a Bill amending the Reserve Bank of Zimbabwe Act to have been prepared and presented to Parliament. This would have made it unnecessary to resort to the Presidential Powers Act.
The SI itself contains a fatal inconsistency. The new section 44B which the SI purports to insert in the Reserve Bank of Zimbabwe Act empowers the Minister of Finance to issue notices authorising payments by bond notes which “are exchangeable at par value” with any specified currency. The SI then goes on to say that the Minister is deemed to have issued a notice authorising payment by bond notes “as if each unit of a bond note is exchangeable for one United States dollar”. The Minister’s notice, in other words, does not say that bond notes are in fact exchangeable for US dollars, which he is required to say by the new section 44B.
It is deplorable that once again a 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.
We must once more urge Parliament 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] for assessment, and to relevant portfolio committees so that these committees can consult the public about them in the same way as they do with Bills.
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