Economic Governance Watch 01-2024 - The Content and Scope of Finance Bills

ECONOMIC GOVERNANCE WATCH 1/2024

[17th March 2024]

The Content and Scope of Finance Bills

Every thinking person in Zimbabwe must be concerned about the state of our economy and in particular about the rapidly-depreciating Zimbabwe dollar.  The various measures adopted by the Ministry of Finance and Investment Promotion to halt the dollar’s slide – arbitrary fixing of exchange rates, managed currency auctions, gold-backed digital currency – have signally failed.  The lack of success of these measures suggests they were not carefully thought out and debated before they were introduced – and that brings us to the topic of this Economic Governance Watch:  how disparate economic measures are crammed into annual Finance Bills and passed through Parliament without adequate debate, in defiance of the precepts of good government, proper parliamentary practice and the Constitution.

The Finance Bill, 2023

The Bill that was passed by Parliament at the end of last year is a good example.  Before the Bill was presented in Parliament a departmental draft was circulated to some Members of the National Assembly.  The departmental draft was skimpy compared to the final Bill and made no mention of new taxes the Minister intended to introduce, such as the “wealth tax” on houses.  The final Bill was presented to the House on the 14th December, the last day the House sat before adjourning for the Christmas break.  It passed all its readings that day, with virtually no debate.  Before the Bill was presented, the House had been going through the annual estimates of expenditure [the amounts allocated to Ministries and Departments] and during that time some of the tax measures in the Bill were considered, at least indirectly.  But the Bill contained a ragbag of other measures which had little or nothing to do with taxes, for example:

·      allowing civil penalties to be imposed for VAT contraventions

·      creating a category of strategic minerals that can be mined only by holders of special mining leases or special grants

·      prohibiting tributes (i.e. subleases) of mining locations for precious stones and strategic minerals

·      altering the composition of the board of Zimbabwe Revenue Authority

·      limiting the power of the Reserve Bank to borrow foreign currency

·      exempting public entities from the Public Entities Corporate Governance Act and the Public Procurement and Disposal of Public Assets Act

·      changing the composition and governance of the Sovereign Wealth Fund (which is renamed the Mutapa Investment Fund)

·      changing the composition of the International Financial Services Council under the Banking Act.

These important and contentious measures, stuffed into the Finance Bill, were not debated at all.

The measures, as we have said, had little or nothing to do with taxes, so they seem to fall outside the scope of the long title of the Bill which, like all Finance Bills, says its purpose is:

“To make further provision for the revenues and public funds of Zimbabwe and to provide for matters connected therewith or incidental thereto.”

The only apparent reason for tacking them on to the Finance Bill seems to have been to hurry them through Parliament as part of the end of year budget process.

In this bulletin we shall argue that tacking these measures on to the Bill was inimical to good governance, contrary to proper parliamentary procedure and, most important, was unconstitutional.

Good Governance

The procedure for formulating and drafting Government legislation in Zimbabwe is designed to ensure that the Government speaks with one voice.

A Ministry that wants to amend an Act it administers, or wants a completely new Act, has to get the principles of the proposed legislation, as well as the draft Bill, circulated to all other Ministries and approved by the Cabinet Committee on Legislation and the Cabinet itself.  Only when it has done this will its Bill be sent to Parliament for printing as a Government Bill.

This procedure ensures that all Ministers and their Ministries are informed of proposed Bills and have an opportunity to express their opinions on them.  When a Government Bill is presented to Parliament, therefore, it can fairly be said to represent the considered views of the Government as a whole.  

Finance Bills

Finance Bills are an exception.  Taxation proposals are formulated by the Treasury and drafted into Bill form by the Attorney-General’s Office without being circulated to other Ministers and without being approved by the Cabinet Committee on Legislation.  The justification for this is secrecy:  tax proposals should be kept secret until they are announced by the Minister of Finance in his budget speech.  If they are disclosed too early, taxpayers may be able to avoid the new taxes, thereby reducing the Government’s revenues.

The justification for keeping Finance Bills secret, however, applies only to their taxation provisions, so in the interests of good governance Finance Bills should be restricted to their proper purpose, namely the imposition and alteration of taxes.  If other provisions are tacked on to them – provisions relating to exchange rates, for example, or procurement or corporate governance – those provisions will not undergo the careful scrutiny that the normal legislative procedures ensure.

Parliamentary Practice

Tacking non-taxation provisions on to a Finance Bill is also contrary to good parliamentary practice.

Time constraints on debate

Our parliamentary procedures, laid down in the Constitution and Standing Orders, ensure that Bills are scrutinised and debated many times:  by the Parliamentary Legal Committee;  by the appropriate portfolio or thematic committees;  by the whole House during their Second Reading;  again by the whole House when the Bills go through their Committee Stage;  and finally – if Members are not exhausted – during the Third Reading.  All this scrutiny and debate is intended to ensure that by the time Bills have passed through the National Assembly and the Senate they are as good as the collective wisdom of Parliament can make them.

Finance Bills

Once again though, Finance Bills are different.  The Government needs money to run the country and cannot be expected to wait too long for it;  the Government must not be held to ransom by recalcitrant parliamentarians who try to drag out debates on the Bills until their demands have been satisfied.  Hence Standing Orders give the National Assembly only a limited time – twelve sitting days – within which to consider the estimates in Committee of Supply and a further six sitting days to debate the motion giving the Minister of Finance leave to bring in a Finance Bill.  In practice almost all this time is taken up in debating the estimates.

Scope of leave to introduce Finance Bill

When the estimates have been considered in Committee of Supply, a motion is moved and debated that the Minister of Finance should be given leave to bring in a “Finance Bill”, and that term is defined in the National Assembly’s Standing Orders as follows:

““Finance Bill” means a Bill the sole object of which is to make provision for revenues and public funds of Zimbabwe and to make provision for ancillary and incidental matters.”

The Finance Bill which the Minister is authorised to bring in must have the sole object of providing for revenues and public funds and for ancillary and incidental matters.  If it goes further than that, if it does anything else, it is not authorised by the motion.

According to Erskine May, the author of a very authoritative book on parliamentary procedure:

“Provisions not essentially connected with national finance, or not incidental to the taxing or administrative provisions of a Finance Bill, are outside the scope of a Finance Bill, and their inclusion might justify an accusation of ‘tacking’ …”

This applies to the extra provisions tacked on to the Finance Bill which we listed above.  They were not ancillary or incidental to the taxing provisions set out in the Bill, and they were so far removed from central government finance and taxation that their inclusion was indefensible.  The effect of tacking them on to the Bill was that they were passed without debate, rendering Parliament no better than a rubber stamp.

Unconstitutionality

Not only was it contrary to good government and parliamentary practice to tack the extra provisions on to the Finance Bill, it was unconstitutional.

Zimbabwe has a bicameral legislature, a National Assembly and a Senate, each of which must pass Bills before they can be enacted into law, and each of which has generally the same power and duty to consider and debate the Bills that are presented to them.  Money Bills are an exception to this.  Money Bills cannot originate in the Senate, and the Senate has no power to amend Money Bills transmitted to it from the National Assembly;  all the Senate can do is recommend that changes be made to them.

To preserve the constitutional balance between the National Assembly and the Senate, the Constitution defines “Money Bill” quite carefully:

““Money Bill” means a Bill that makes provision for—

(a) imposing, increasing or reducing a tax for the benefit of the State;

(b) appropriating money from, or imposing, increasing or reducing any charge on, the Consolidated Revenue Fund or any other fund vested in or controlled by the Government;

(c) compounding or remitting a debt due to the State;

(d) condoning a failure to collect a tax due to the State;  or

(e) condoning unauthorised expenditure by the Government.”

Appropriation Bills and Finance Bills are pre-eminently Money Bills within the terms of this definition, and if provisions that fall outside the definition are tacked on to a Finance Bill the effect is to diminish the rights of the Senate by depriving the Senate of the opportunity to amend the provisions.  This is not just unparliamentary but, because it tends to the destruction of parliamentary government, it is unconstitutional.  We have a bicameral (i.e. two-chamber) Parliament, and each chamber must be permitted to exercise its constitutional right to debate and amend legislation.

Tacking extraneous matter on to Finance Bills is unconstitutional for another reason too.  Under normal parliamentary procedure Bills are considered by parliamentary committees which hold public hearings to obtain the views of the general public.  This procedure complies with section 141 of the Constitution, which enjoins Parliament to facilitate public involvement in its legislative processes.  Finance Bills do not go through this procedure, however, so if additional provisions are tacked on to them those provisions are never subjected to public scrutiny.

Conclusion

Our economic crisis cannot be solved by legislation alone, obviously, but if both Houses of Parliament are allowed to subject all proposed legislative measures affecting the economy to careful debate and analysis, then surely some sensible and lasting solutions to the crisis will be found.

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