BILL WATCH 56-2015

BILL WATCH 56/2015

[24th November 2015]

Both Houses of Parliament Will Sit This Week

Budget Day is Thursday 26th November

Last Week in the National Assembly

Criminal Procedure and Evidence Amendment Bill

Adverse PLC Report  On Tuesday 17th November the Speaker announced receipt of an adverse report from the Parliamentary Legal Committee [PLC] on the amended Bill [i.e., the Bill as amended during its Committee Stage].   As expected, the amendment attracting the adverse report was the Ministry’s one to resurrect, in modified form, section 121(3) of the Criminal Procedure and Evidence Act, following the Constitutional Court’s decision on 23rd September striking down the that provision as unconstitutional.  The adverse report means that the Bill cannot be passed until the National Assembly has either rejected the adverse report or amended the Bill again to accommodate the PLC’s objections to the new section 121(3). 

Bill recommitted for consideration of further amendments   The next day, 18th December, Vice-President Mnangagwa gave notice of further amendments he wanted made to the Bill and the National Assembly approved without discussion his motion that the Bill be “recommitted”, i.e. returned to its Committee Stage for consideration of these new amendments.  In other words, the Government is reacting to the PLC adverse report by changing the Bill to get round the PLC’s objections.  The National Assembly has yet to consider the amendments [they are outlined below, under Coming up in the National Assembly].

General Laws Amendment Bill

Non-Adverse PLC Report   On Tuesday 17th November the Speaker announced receipt of a non-adverse report from the Parliamentary Legal Committee [PLC] on the amended Bill [i.e., the Bill as it had been amended during its Committee Stage].   This meant that the National Assembly was now free to complete passage of the bill forthwith and send it to the Senate.  But it did not do so.

Bill recommitted for consideration of further amendments  Instead, on Wednesday, together with the Criminal Procedure and Evidence Amendment Bill, the Bill was “recommitted” at the request of Vice-President Mnangagwa, who had given notice that he wishes further amendments to be made to the Bill [the amendments are outlined below, under Coming up in the National Assembly].   

No progress on Banking Amendment Bill

Yet another week passed without the National Assembly making a start on the Committee Stage of this Bill, which will involve consideration of the amendments to the Bill proposed by both the Minister of Finance and Economic Development and the Portfolio Committee on Finance and Economic Development.  The Bill has been stuck at this point since 29th September.

Motions  Most of Tuesday afternoon’s sitting was taken up by Hon Cross’s presentation of his motion calling for action on the scandalous revelations disclosed by the forensic audit on the Premier Service Medical Aid Society [PSMAS].  In the ensuing debate, MPs from both sides of the House were united in calling for action against those responsible.  [Debate was not resumed on the PLC’s adverse report on SI 77/2015 protecting PSMAS from attachment of property in satisfaction of its numerous debts.]

Last Week in the Senate

Still without Bills to consider, the Senate had an easy week of brief sittings.  It continued debate on motions already presented and heard Senator Mlotshwa’s presentation of the report of the Parliamentary delegation to the 7th World Water Conference held in Korea in April.   On Thursday Questions without Notice were dispensed with, the Minister of State for Liaising on Psychomotor Activities in Education gave a brief answer to Senator Chimhini’s written question on the achievements and successes of his Ministry since its establishment, and Senators adjourned for the weekend at 3.14 pm.

Coming Up in the National Assembly

National Budget

The Minister of Finance and Economic Development will present the 2016 National Budget in the National Assembly on Thursday afternoon, 26th November.

Bills 

Three Bills head the National Assembly Order paper for 24th November, in the following order [the original Bills and the proposed amendments to them that will be under consideration are available from Veritas at the addresses given at the end of this bulletin]:

General Laws Amendment Bill – for consideration of further amendments

As mentioned above, and notwithstanding a non-adverse report from the PLC, Vice-President Mnangagwa last week had this Bill “recommitted” for consideration of further amendments he wants made to the Bill.  As reflected on the Order Paper, most of the these amendments appear uncontroversial and merely frame in a more acceptable legal form the amendments put forward by Hon Majome during the first Committee Stage and approved by the House; this applies to the new definitions for the Interpretation Act and the amendments to all the University Acts designed to ensure that appointments to University governing councils achieve “fair regional representation” in addition to gender balance. 

There is a problem, however, with the amendment to section 70 of the Criminal Law Code concerning prosecutions for consensual sexual activity between girls and boys between the ages of 12 and 16.  The original Bill proposed in reasonably clear terms that there should be no prosecution in such a situation unless a probation officer has recommended that one of the culprits [meaning either the boy or the girl] be prosecuted.  A somewhat confused discussion during the first Committee Stage seems to have prompted the new wording now proposed, which simply does not make sense: “ … one of them shall be charged … except upon the report of a probation officer … showing that it is inappropriate to charge either of them with a crime”.  The original version, which made sense and which should be restored, was neither of them shall be charged … except upon a report of a probation officer … showing that it is appropriate to charge one of them”.   There will obviously be cases in which neither should be prosecuted; and it may be debatable whether prosecution is ever the correct response to consensual sexual activity between teenagers of more or less the same age. 

Criminal Procedure and Evidence Amendment Bill  – for consideration of further amendments

There are two amendments, both proposed by Vice-President Mnangagwa:

Private prosecutions  In an obvious response to the Constitutional Court’s recent decision against the Prosecutor-General on his claims to have the right to withhold certificates nolle prosequi from would-be private prosecutors [see Court Watch of 10th November], there is an amendment proposing a comprehensive re-enactment of section 16 of the Criminal Procedure and Evidence Act giving the Prosecutor-General the power to withhold such certificates in a wide range of circumstances – so wide that Mr Tomana will probably feel his claims have been entirely vindicated.  The amendment also excludes companies from bringing private prosecutions, overturning the Supreme Court’s decision on that point in the Telecel case, at least for the future.

New section 121(3) – prosecutors delaying release on bail   This is a response to the PLC’s adverse report on the amended Bill – and at the same time to the Constitutional Court’s decision of 23rd September striking down section 121(3) of the Criminal Procedure and Evidence Act.  The proposed new version still leaves prosecutors in control of an accused person’s liberty after a court has granted bail.  The court must – it is given no discretion – order the continued custody of the accused if, immediately after the decision granting bail, the court is notified that the Prosecutor-General or public prosecutor wishes to appeal.  The only difference is that an accused person will spend less time in custody if no appeal is lodged -– only 48 hours [or, possibly, 72 – the amendment, confusingly, features both periods!] as opposed to the 7 days allowed by the provision struck down by the Constitutional Court.  Whether this manoeuvre will satisfy the PLC is debatable in view of the fact that the accused person’s liberty is still decided by the prosecution, with its notoriously bad record of misuse of section 121(3) over the years.  If it passes muster with the PLC, there will almost certainly be another challenge in the Constitutional Court.  

Lawyers call for repeal of section 121(3)  In a press statement in today’s newspapers, Zimbabwe Lawyers for Human Rights call for the outright repeal of section 121(3), pointing out that in the form struck down by the Constitutional Court the provision “rendered the judicial officer and his or her findings irrelevant, hence it was an assault on and affront to the independence of the judiciary” .  This criticism applies with equal force to the new version of section 121(3) that Vice-President Mnangagwa will be asking MPs to approve.

Banking Amendment Bill — still awaiting its Committee Stage and consideration of many pages of amendments from the Minister of Finance and Economic Development and the Portfolio Committee on Finance and Economic Development.

PLC Adverse Report on SI protecting PSMAS from legal action] 

MPs have already had their say on this adverse report, and seemed to agree with it.  They are waiting for the Minister of Health and Child Care to present his case, if any, on the statutory instrument before they vote on whether or not to approve the report. 

Motions  Item 7 on the Order Paper is the new motion calling for  appreciation of the Zimbabwe Defence Forces and its Commander-in-Chief President Mugabe and support for the spirit of National Unity, peace and development [Hon Shamu and Hon Zindi]. 

Coming Up in the Senate

Bills  There are still no Bills on the Senate’s Order Paper.

Motions  The Order Paper for Tuesday 24th November is headed by Senator Hlalo’s motion calling for a National Stakeholder’s Indaba to discuss critical national economic challenges.

Question Time [Thursday]  The Budget presentation on Thursday afternoon will preclude the holding of the usual Question Time. 

Government Gazette dated 20th November 

Statutory Instruments

Clamping and tow-away by-laws  SI 124/2015 is the latest in a succession of clamping and tow-away by-laws enacted by local authorities, this time from the Mazoe Rural District Council.  Unlike some other such by-laws, no provision is made for the case where it turns out that a vehicle was mistakenly clamped and/or towed away – an omission that makes these by-laws invalid for gross unreasonableness.  There are other defects, including: a definition of “public parking area”, a term not actually used in the by-laws; and no definition of “prescribed penalty” to tell the reader where to find a prescribed penalty laid down.   

Mandatory ethanol/petrol blending   SI 125/2015 amends the regulations governing this matter [SI 17/2013, as previously amended on two occasions].  This time the definition of “licensed ethanol producer” is extended to cover the situation where licensed ethanol producers are unable to supply ethanol for blending.

General Notices  No GNs were gazetted on 20th November.

 

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