BILL WATCH 49/2016
[3rd November 2016]
Parliamentary Monitoring of Statutory Instruments
Two controversial statutory instruments have been published in the Gazette recently, both of which are likely to have far-reaching effects on the national economy and on the lives of ordinary people. They are:
SI 64/2016, the Control of Goods (Open General Import Licence) (No 2) (Amendment) Notice, 2016 (No 8), which effectively prevented cross-border traders from importing a wide range of goods and sparked widespread rioting in July, and
SI 133/2016, the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016, which permits the Reserve Bank to issue bond notes as legal tender.
Apart from their legal validity [which is open to doubt – see Constitution Watch 14/2016 and Bill Watch 48/2016] the two instruments raise an important legal and constitutional question, namely: Should the President or a Minister have published such important laws before Parliament debated them thoroughly and authorised their publication?
Constitution and Law on Parliament and Statutory Instruments
According to section 134(f) of the Constitution: “statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.”
Under section 152 of the Constitution the Parliamentary Legal Committee [PLC] must examine every statutory instrument published in the Gazette, as well as any draft statutory instrument referred to the Committee by the Minister or other authority empowered to make it.
Paragraph 9 of the Fifth Schedule to the Constitution says that if the PLC reports that a statutory instrument is unconstitutional or ultra vires its enabling Act of Parliament – i.e. goes beyond the limits laid down in that Act – and the Senate or the National Assembly adopts the report, the statutory instrument “thereupon ceases to have effect” The use of the word “thereupon” means that the statutory instrument becomes invalid from the date on which the Senate or the National Assembly adopted the report, and its previous validity and operation are not affected.
Section 36 of the Interpretation Act says that all statutory instruments must be laid before Parliament [presumably both Houses] within 30 sitting days [in the sense of days on which Parliament actually sits] after the instruments were published in the Gazette.
Laying of statutory instruments before Parliament means simply placing them on the table in the centre of the parliamentary chamber. The statutory instruments are not read out, and members are not even encouraged to look at them. In any event, because of a dispute over who is to pay for instruments to be laid before Parliament [and under Standing Order 193 of the National Assembly copies of them must be given to each member] statutory instruments are not currently laid before either House. Hence the parliamentary control over statutory instruments envisaged by section 36 of the Interpretation Act, slight though it is, is ineffective in practice. Democracy, transparency and accountability seems to have been sacrificed for the cost of a few reams of paper.
Two points may be noted here:
- Instruments are laid before Parliament after they have been gazetted, so they are normally in force before Parliament gets to see them.
- Neither the Constitution nor the Interpretation Act says that the Houses of Parliament must approve statutory instruments that are laid before them, or indeed do anything with them. If however either House were to pass a motion that an instrument should be repealed, the President or Minister who issued it would probably have to comply as a matter of practical politics – though he or she would not be legally obliged to do so.
Parliamentary Legal Committee and Statutory Instruments
As pointed out above, section 134 of the Constitution requires statutory instruments to be laid before Parliament and also requires them to be submitted to the PLC for scrutiny. Under section 152 of the Constitution [see above] the PLC must examine every statutory instrument published in the Gazette, as well as any draft instrument referred to the Committee by the authority empowered to make it.
There is no specific time-limit for the submission of statutory instruments to the PLC after their gazetting, but it has to be done without delay in terms of section 324 of the Constitution. Once the PLC has a statutory instrument it has 26 business days within which to examine it and report on it to the Senate or the National Assembly [Standing Order 32(5)(d) of the National Assembly].
Duties of PLC
The PLC must examine all statutory instruments submitted to it to see if:
- they contravene any provision of the Constitution [section 152(3) of the Constitution] or
- they are ultra vires the Act of Parliament under which they were made [section 152(4) of the Constitution].
In addition, under Standing Order 28 of the National Assembly, the PLC:
- may recommend the correction of errors or omissions in a statutory instrument,
- must ensure that no statutory instrument derogates from the exercise of legislative power, and
- must ensure that no statutory instrument:
- contains matters more appropriate for parliamentary enactment,
- makes the rights and liberties of persons unduly dependent on administrative decisions which are not subject to review by a judicial tribunal, and
- changes an Act of Parliament unless permitted to do so by the enabling Act.
Clearly the PLC plays a very important and responsible role in the legislative process.
Consultation Before Enactment of Statutory Instruments?
The drawback to the control exercised over statutory instruments by Parliament through the PLC, as outlined above, is that Parliament does not look at the instruments until they have been published in the Gazette, i.e. after they have come into force. Even though Parliament may effectively repeal instruments by adopting a PLC report that they are ultra vires, the instruments will have been in operation for some time and, during that time, members of the public will have had to obey them.
Is there any legal requirement that Parliament must be consulted about statutory instruments before they are published? Perhaps there is.
In our Constitution Watch 14/2016 of 26th July 2016, we noted that section 141 of the Constitution 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.”
We went on to say that although this provision applies only to Bills, which are draft Acts of Parliament, 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 should be construed as requiring the Ministers who make them to ensure that interested parties are consulted about them to the same extent as applies to Acts of Parliament. The democratic political system envisaged by section 3 of 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 in it through consultation.
Separation of Powers under the Constitution
Although the Executive is responsible for drawing up legislation and, through Ministers and other authorities, for making statutory instruments, Parliament is the most important part of the Legislature. Its legislative role must be upheld and protected against encroachment by the Executive.
Parliament as the supreme law-making entity in Zimbabwe has a very real interest in the validity and effectiveness of the country’s laws, including statutory instruments. It can be argued therefore that Parliament has an equal constitutional right with other interested parties to be consulted before important statutory instruments are made. So although such consultation has not been formalised in an Act or in parliamentary Standing Orders, it can be said that the Constitution mandates it and therefore, before publishing a statutory instrument that will significantly affect the national economy or people’s lives, the person or authority responsible for making the instruments must consult Parliament.
Documents Available on Veritas Website
Constitution of Zimbabwe [Ctrl + click to follow this link]
SI 64/2016 [Ctrl + click to follow this link]
SI 133/2016 [Ctrl + click to follow this link]
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