BILL WATCH 44/2020
[8th July 2020]
SI Establishing National Public Health Institute:
Is it Valid?
Last Friday’s Gazette contained Statutory Instrument [SI] 154 of 2020, titled The Research (Constitution of the National Public Health Institute) Regulations, 2020 [link]. These are a set of regulations made by Vice-President Chiwenga under the Research Act [link]. As their name suggests, the regulations establish a body called the National Public Health Institute whose main functions are:
to conduct research into, and advise the Government on, all matters concerned with public health in Zimbabwe;
to facilitate and implement the development of a comprehensive public health delivery system;
to facilitate the development of skills and research capacity useful for developing a national policy in the field of public health;
to develop national standards and guidelines for implementing national policies in the field of public health;
to monitor and investigate potential health risks and disease trends;
to act as “the platform for multi-stakeholder consultations” on issues affecting public health; and,
under authority delegated by the Research Council, to register foreigners who wish to undertake public health research in Zimbabwe.
The Institute will be headed by a Chief Government Medical Officer and two deputies appointed by the President; they will preside over a 12-member management committee of mostly health practitioners appointed by the Research Council. The Institute will have its own staff, including a registrar to register public health researchers.
At least once a year the Institute will convene a Public Health Stakeholders’ Forum “to ensure co-ordination and non-duplication of research projects, initiatives, endeavours, resources in the field of public health” and to further the Institute’s objects and functions.
The Institute is no doubt a worthy enterprise, and possibly a necessary one in view of Zimbabwe’s disorganised response to the Covid-19 pandemic. On the other hand, at least two important questions need to be answered:
- Is it legally permissible to establish such an Institute under the Research Act?
- Won’t the Institute duplicate most if not all the functions of the Advisory Board of Public Health under the Public Health Act?
1. Can the Institute be Established under the Research Act?
How institutes are established under the Act
The Research Act establishes the Research Council of Zimbabwe [RCZ] which has the function of promoting, directing, controlling and co-ordinating research in Zimbabwe. The Act also provides for the establishment of research institutes to deal with particular fields of research. Under section 24 of the Act, an individual Minister who wants to establish such a research institute must approach the RCZ with a proposal and the RCZ forwards the proposal, together with its recommendations, to the Vice-President responsible for the Research Act. If the Vice-President approves the proposal, he notifies the Minister concerned, who can then establish the research institute. Research institutes established in this way have the function of carrying out research in Zimbabwe in accordance with their constitutions and research programmes approved by the RCZ.
Two points must be noted in this: research institutes are established to conduct research, not to do other things, and the research is controlled and supervised by the RCZ.
Was the National Public Health Institute properly established under the Act?
For the following reasons, the Institute does not seem to have been established validly:
Clearly it was not established under section 24 of the Research Act. The procedure laid down in that section could not have been followed, if only because the Vice-President responsible for administering the Act established the Institute. Section 24 envisages the Vice-President approving applications by Ministers to establish institutes, rather than he himself establishing them.
In any event the Vice-President did not purport to establish the Institute under section 24, but rather through regulations under section 32 of the Act. That section empowers him, after consultation with the RCZ, to make regulations prescribing:
“anything … which, in his opinion, is necessary or convenient to be prescribed for the better carrying out of or giving effect to the provisions of [the] Act”.
The section does not mention establishing institutes. Even if it did, any institutes established by regulations under section 32 would have to be concerned primarily with research, which is what the Act is all about. The functions of the Institute extend far beyond research and include developing a comprehensive public health system, developing national standards and guidelines in public health, being the platform for multi-stakeholder consultations, registering foreign researchers, and so on.
One important function of the Institute is to register and supervise foreign researchers in public health. That is a function which the Act gives to the RCZ [See section 27] and even though the regulations say that the RCZ has delegated that function to the committee of the Institute, the general rule is that a body such as the RCZ cannot delegate its statutory functions to someone else. Even if the Institute could be established under the Act, therefore, it could not carry out this function.
Duplication of Functions of Advisory Board of Public Health
Another objection to the new Institute ‒ and another reason for saying it has not been properly established ‒ is that it duplicates many of the functions which Parliament, through the Public Health Act, has vested in the Advisory Board of Public Health. Indeed, so similar are its functions to those of the Advisory Board, and so similar is its composition, that the inference is inescapable that the Institute is intended to supersede the Advisory Board completely. Parliament could never have intended to give the Vice-President power to do this under the Research Act.
Similarity of functions
The similarities in the functions of the Institute and the Advisory Board are striking:
The Advisory Board advises the Minister of Health and Child Welfare on all matters relating to public health [section 4(8)(a) of the Public Health Act]. The Institute will give advice to the President, the Vice-President and the Minister of Health on all matters connected with public health [section 4(a) of the regulations].
The Advisory Board identifies priorities for public health [section 4(8)(b) of the Act]. The Institute will direct or assist in planning and implementing public health delivery [section 4(e) of the regulations].
The Advisory Board carries out or commissions research into public health [section 4(8)(d) of the Act]. The Institute will conduct research on all matters connected with public health [section 4(a) of the regulations].
The Advisory Board hosts the Annual National Health Consultative Forum, to promote the sharing of information on public health issues [section 4(8)(f) of the Act]. The Institute will convene an annual Public Health Stakeholders’ Forum for much the same purpose [section 20 of the regulations].
Similarity of membership
The Advisory Board and the committee of the Institute are also strikingly similar in their membership. Both contain representatives of all the major health professions as well as local authorities, and both have a legal practitioner as a member [though it is not clear what use a lawyer will be in a public health emergency].
As we have said, the similarities between the board of the new Institute and the Advisory Board of Public Health are so great that it seems clear the Institute is intended to replace the Advisory Board. The Advisory Board is a statutory body created directly by the Public Health Act, and only Parliament can replace or abolish it or transfer its functions to a different body. A Minister or Vice-President cannot do so through regulations made under some other Act.
The use of regulations to establish an important body such as the Institute is yet another example of the Government’s resort to statutory instruments rather than getting Parliament to enact an appropriate statute. Statutory instruments are subordinate legislation and should be confined to subordinate matters, matters of detail that are too petty to be covered in an Act of Parliament. If Vice-Presidents and Ministers enact statutory instruments that go beyond that, they usurp the role of Parliament and infringe the doctrine of separation of powers, one the founding values of our Constitution.