The Minister of Justice has been accused of trying to pass a controversial Bill through parliament that includes a clause that would allow the government to have copyright in various official documents, among other unconstitutional changes. HARARE – The Parliamentary Legal committee has been examining the General Laws Amendment Bill which was gazetted in October last year. This Bill is used to amend several different acts, and it is designed to save time because Parliament does not have to go through the laborious process of considering and passing a large number of small bills. However, the government has developed a worrying trend of slipping controversial provisions into the bill that have far reaching implications and that go unnoticed by MPs.
According to the legal watchdog, Veritas, the clause under scrutiny would give the government copyright in various types of official documents, namely Acts and statutory instruments, court judgments, Gazette notices and official registers.
Violation of rule of law
It will also give the government a complete discretion to decide whether or not the documents should be published, so private individuals and organisations will not be allowed to publicise and disseminate laws such as the Electoral Act, or important court judgments, unless the Government agrees.
The amendment is unconstitutional in that it violates section 20 of the Constitution, which guarantees freedom of expression, namely the freedom to receive and impart ideas and information without interference.
The amendment will also violate the rule of law, which the principals undertook to uphold in article 11.1 of the GPA. It will also be contrary to best practice in the southern African region. In South Africa, Zambia, Botswana and Namibia, there is no copyright in Bills, Acts of Parliament and other texts of a legal or administrative nature.
Most of the Bill is uncontroversial, but some of the amendments made are important.
Clause eight relates to the Indigenisation and Economic Empowerment Act and seeks to make amendments that would allow the responsible Minister to carry out assessment ratings of businesses rather than just companies. The amendment itself is a small one, but its implications may be far-reaching, in that it will extend the Acts scope to all kinds of business entities such as syndicates and professional partnerships.
Clause 11 relates to the Environmental Management Act and includes several amendments, one of which will require an environmental impact assessment study to be done before bill-boards can be erected or fibre-optic cables laid [this was not mentioned in the Bills memorandum and Harare City Council is reported to be against it].
Criminal procedure tampered with
Clause four seeks to amend the Criminal Procedure and Evidence Act so that if a criminal court orders a convicted person to pay compensation to a victim of a crime, the victim will be able to have the order registered as a civil judgment against the convicted person and will be able to enforce the civil judgment even if the convicted person appeals against his conviction. If the convicted person disputes the compensation order he will have to appeal against it separately.
This amendment needs to be reconsidered because:
– There is no provision for the convicted person to be told if the compensation order has been registered as a civil judgment. So it can be enforced against him without his being aware that it has been made a judgment.
– If the convicted person is not told when the compensation order has been registered as a civil judgment, he will not be able to appeal against it within the 21-day time-limit for lodging civil appeals.
– Most importantly, if the convicted person is successful in his appeal against conviction, and if the appeal court finds him innocent, he will still be liable to pay compensation to the victim of a crime he didnt commit, unless he lodges a fresh appeal against the compensation order.
Another of the worrying clauses relates to limitations on legal action against Reserve Bank. This clause, as stated in the Bills memorandum, will apply the State Liabilities Act retrospectively to actions against the Reserve Bank.
It probably wont affect legal proceedings that have been instituted in South Africa against the Reserve Bank. Those proceedings will continue to be governed by South African law. However, it will stop litigants in Zimbabwe from executing against the Reserve Bank; that is, from obtaining court orders requiring the Banks assets to be seized and sold in order to pay off the Banks debts.
Lighter poaching sentences
Some of the amendments set out in the Bill are both important and thoroughly undesirable.
Clause seven will amend the Civil Aviation Act to allow the responsible Minister to make regulations prescribing criminal and civil penalties for contraventions of aviation law. At present the maximum penalty that can be prescribed is a fine
of level five [currently US $200] or six months imprisonment; this clause will increase it to a fine of level 14 [US $5 000] or five years imprisonment. Such severe prison sentences should be prescribed only by Parliament itself, not by a
Minister. Incidentally, the increased criminal penalty is not mentioned in the Bills memorandum.
Clause 10 relates to mandatory minimum sentences for rhino poaching. Section 128 of the Parks and Wild Life Act currently imposes severe penalties [a fine of up to level 14 currently US $5 000 or imprisonment for up to 20 years, or both] for poaching rhinoceros and other specified protected animals. This clause will increase the penalty to a mandatory minimum prison sentence of nine years for a first offence and 11 years for a second offence.
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