BILL WATCH 23/2012

BILL WATCH 23/2012

[5th June 2012]

The House of Assembly is meeting today, Tuesday 5th June

The Senate remains adjourned until Tuesday 12th June

Outcome of SADC Summit Luanda, 1st June: Work for Parliament

The 1st June Luanda SADC Summit communiqué said:

“6.9 On Zimbabwe, Summit commended stakeholders for their commitment, cooperation and efforts towards the implementation of the Global Political Agreement (GPA) and urged the parties to the GPA to finalise the constitution-making process and subject it to a referendum thereafter.

6.10 Summit also urged the parties to the GPA, assisted by His Excellency Jacob G Zuma, President of the Republic of South Africa and SADC Facilitator of the Zimbabwe Political Dialogue, to develop an implementation mechanism and to set out time frames for the full implementation of the Roadmap to Elections.

6.11 Summit further commended the Facilitator for his efforts towards the realisation of full implementation of GPA.” [Full communiqué and Roadmap available from [email protected]]

Parliament Running out of Time

Parliament has a vital role to play in relation to both constitution and Roadmap.  The constitution must be discussed in Parliament before the Referendum, and after the Referendum it has to be gazetted as a Bill and passed by a two-thirds majority in both Houses.  For the full implementation of the Roadmap to Elections, several key reform Bills must be passed.  So far the current Parliament has passed very little necessary reform legislation – not even the Human Rights Commission Bill or the Electoral Amendment Bill, both of which took a long time to get through Cabinet because of inter-party arguments on content, and are now taking a long time in Parliament.

According to the 2012 Sitting Calendar, Parliamentary time for the rest of 2012 is limited – 30 sittings for the House of Assembly, 24 for the Senate.  [Before the current session ends there are 9 sittings in June for the House, and 6 for the Senate.  The next session – the fifth and final session of the Seventh Parliament – is due to open on 17th July, and, apart from opening day and Budget day, there are 21 House sittings and 18 Senate sittings planned before the end of November.  There are no sittings planned in December.] Parliamentary attention will also have to be focused on the 2013 Budget in November.

The sitting calendar for next year is not yet out.  But the present Parliament has to end by 28th June 2013, as explained in Bill Watch 23/2012 of 31st May.  [Some sections of the press have perpetuated the wrong notion that Parliament ends in March 2013, but the correct date is 28th June.  The President was reported as saying “March” in Luanda, but in a later TV interview said “March or June”.]

New Mining Fees and 5 Other SIs to be Repealed

Adverse reports from the Parliamentary Legal Committee [PLC] were adopted by the Senate on 28th March on five statutory instruments the PLC considered to be inconsistent with the Constitution and therefore null and void.  [Statutory instruments may be gazetted without prior PLC vetting but must be examined after gazetting and a report on their constitutionality made to the Senate.] The SIs in question were:

· 127/2011    Water Sub-catchment Councils Rates Regulations Amendment 5

· 153/2011    VAT (Fiscalised Recording) Amendment Regulations

· 11/2012      Mining fees increases [a majority report, Hon Mangwana dissenting]

· 10/2012      Water Sub-catchment Councils Rates Regulations Amendment 6

· 9/2012        Norton Trading By-laws

The reports were presented by PLC chairman Hon Shepherd Mushonga and adopted by the Senate without much debate.  Interestingly, none of the responsible Ministers were present to defend any of the SIs or ask for time to argue against the reports.

Effect of adoption of adverse reports Neither the presentation of an adverse report, nor its adoption by the Senate, itself invalidates the statutory instrument concerned.   But repeal or amendment may follow, because under the Constitution [section 40B(1)(c)], if the Senate adopts a PLC adverse report on a statutory instrument, the statutory instrument, or the offending provisions in it, must be repealed by the President by notice in the Gazette – unless within the next 21 “sitting days” either

· the House of Assembly resolves that it must not be repealed, or

· the authority responsible for the statutory instrument repeals or amends it in a way that, in the PLC’s opinion, removes the inconsistency with the Constitution.

Definition of “sitting day” The definition of “sitting day” is important: “any Tuesday, Wednesday, Thursday or Friday that is not a public holiday, whether or not the House concerned actually sits” [Constitution, section 113 as read with Standing Orders].

21 sitting days have expired The Senate adopted the adverse reports the day before the beginning of the six-week Parliamentary Easter recess.  The House of Assembly adjourned the next day without considering the adverse reports.  But the 21 sitting day countdown continued and duly expired in early May, well before the House of Assembly resumed sitting after the long recess.  As a result it is now too late for the House of Assembly to pass resolutions preserving the statutory instruments from the repeal or partial repeal required by the Constitution.

President must now repeal/amend the SIs The Clerk of Parliament must now report the matter to the President, and on receipt of the report the President must promptly [“shall forthwith”] by notice in the Gazette, repeal the statutory instruments or offending provisions in them, as appropriate [Constitution, Schedule 4, paragraph 8].

Status of the SIs pending action by President Meanwhile the statutory instruments concerned continue in existence until the President gazettes the necessary notices – or until they are declared null and void by a court.  [Note: The courts are not obliged to reach the same conclusions as the PLC on constitutional validity, ultra vires or other legal issues.]

Further Adverse Reports in the Pipeline on Six March SIs

The President of the Senate announced on 16th May that the PLC had given a non-adverse report on all but six of the statutory instruments gazetted during March.  The six other statutory instruments, on which adverse reports are therefore expected to be announced when the Senate resumes on 12th May, are:

· 25/2012      Mberengwa (Traffic) By-laws

· 28/2012      Marondera (Incorporated Area) (Amendment) By-laws

· 30/2012      Chegutu (Incorporated Area) (Amendment) By-laws

· 40/2012      Kariba (Incorporated Areas) (Amendment) By-laws

· 41/2012      Norton Town Council (Food Hygiene) By-laws

· 44/2012      Bindura Municipality (Incorporated Areas) (Amendment) By-laws

The four sets of Incorporated Areas By-laws all fix new rents and charges for the incorporated areas [former townships] of the local authorities concerned.

Coming up in the House of Assembly

Bills

Two key reform Bills are on the Order Paper:

· Zimbabwe Human Rights Commission Bill – for the Committee Stage [amendments to the Bill have been tabled by the Minister of Justice and Legal Affairs to take account of objections raised by the PLC in its conditional non-adverse report]

· Electoral Amendment Bill – for consideration of the PLC’s adverse report, which will be presented by the PLC chairman Hon Shepherd Mushonga.  If the report is adopted, either wholly or partly, the Bill will have to be amended to remove the inconsistencies with the Constitution identified by the House.

Other Bills that may come up are:

· National Incomes and Pricing Commission Amendment Bill – for the Second Reading speech by the Minister of Industry and Commerce

· Older Persons Bill – for the Second Reading speech by the Minister of Labour and Social Welfare, following the PLC’s non-adverse report.

· Proposed Private Member’s Bill to repeal section 121(3) of Criminal Procedure and Evidence Act – for continuation of debate on Hon Gonese’s motion requesting leave to introduce this Bill.  [It remains to be seen whether there will be progress, given the Minister of Local Government, Rural and Urban Development’s application to the Supreme Court for a ruling on his argument that Private Member’s Bills cannot be brought up while the GPA continues in force.]

Motions

The only new motion is a condolence motion on the death of Hon Betty Chikava, the MP for Mount Darwin.  Other items on the Order Paper are for continuation of debates already started.

Question Time – Wednesday

Questions without notice will take up the first hour on Wednesday afternoon.  The next hour is set aside for written questions with notice; 40 await responses from Ministers, several of them dating back to October last year.  More recent questions include two for the Minister of Finance, on the Reserve Bank’s apparent continued involvement in “quasi-fiscal” mining operations, and on delays in the appointment of a substantive Commissioner-General for the Zimbabwe Revenue Authority; one for the Minister of Media, Information and Publicity on why the Broadcasting Authority Board has not been regularised; and one for the Minister of Youth Development, Indigenisation and Empowerment on whether small-scale Chinese- and Nigerian-owned industries are sub ject toindigenisation.

Government Gazette 25th May to 1st June

Acts or Bills gazetted: None

Statutory Instruments

Suspension of NSSA SI 145/2011 re pension contributions and benefits SI 97/2012, gazetted on 28th May but backdated to 1st January, suspends until further notice the new contribution rates and pension benefits that were gazetted in SI 145/2011.

Collective bargaining agreements Leather and Shoe, Sports Equipment, Animal Skin Processing, Taxidermy, Leather Goods;, Travel Goods manufacturing undertaking [SI 92/2012]; Electronics, Communications and Allied industry [SI 94/2012]; Textile industry [SI 95/2012, correcting errors in SI 77/2012]

Local authority rents and charges by-laws Chipinge Town Council [SI 93/2012]

Other local authority by-laws New Mberengwa Rural District Council by-laws control land use and conservation [SI 99/2012] and fishing.

Prisoners’ diet schedule SI 96/2012 [replacing the schedule gazetted in SI 149/2011]

Civil aviation security SI 98/2012 amends numerous definitions in the principal regulations gazetted in SI 207/2006.

General Notices

Resettlement areas placed under Chiefs GN 175/2012 declares an area of resettlement land in Insiza district to be under the authority of Chief Jahana in terms of section 29 of the Traditional Leaders Act.  GN 176/2012 makes a similar declaration for resettlement land in the Hwedza district placed under the authority of Chief Nyahuye Wasvosve.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied