BILL WATCH 4/2012 [8th February 2012]
Both Houses are adjourned until Tuesday 28th February 2012
Media Commission and Foreign Newspapers
The Zimbabwe Media Commission [ZMC] chairperson has threatened action to stop the circulation in Zimbabwe of foreign newspapers that are not registered under the Access to Information and Protection of Privacy Act [AIPPA]. Part XI of AIPPA, which deals with registration, while requiring Zimbabwean mass media owners to register, makes no clear provision for registration of foreign newspapers, although there is a section allowing for a “representative office of a foreign mass media service” to be registered.
But it does not say that a foreign newspaper that is circulated in Zimbabwe must have a registered representative office here. So action by the ZMC to stop the importation or circulation in Zimbabwe of foreign newspapers would require an amendment to AIPPA.
Spokespersons for South African newspapers that are popular in Zimbabwe have denied that AIPPA requires them to register; no doubt they have legal advice to that effect.
Appointment to Key Public Offices Remains Contentious in Inclusive Government Appointments in the inclusive government have always been contentious. Before it was even sworn in there were months of argument over allocation of ministerial posts. The disputes over appointments of the Reserve Bank Governor and the Attorney General were taken to SADC repeatedly.
There were further rows when the President unilaterally appointed provincial governors, ambassadors and judges instead of first agreeing the appointments with the Prime Minister. The MDC parties in the inclusive government have based their objections to the President’s unilateral appointments after the inclusive government was sworn in on the following legal provisions:
Constitution, Schedule 8 : Paragraph 1: “For the avoidance of doubt, the following provisions of the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in this Constitution.”
It then sets out Article 20 of the GPA, including 20.1.3(p): “The President … in consultation with the Prime Minister, makes key appointments the President is required to make under and in terms of the Constitution or any Act of Parliament”
Constitution, section 115(1) “In … Schedule 8 … “in consultation” means that the person required to consult before arriving at a decision arrives at the decision after securing the agreement or consent of the person so consulted.”
Constitution, section 113(5) “In this Constitution, unless the context otherwise requires, a reference to the power to appoint a person to any public office shall be construed as including a reference to the like power to reappoint him to that office.”
Current Disagreement over the Post of Police Commissioner-General
The position of both MDC parties in the inclusive government is that Mr Chihuri ceased to be the Commissioner-General of Police at the end of January when his term of office expired, and that his reappointment or any new appointment would not be valid unless there was consultation and agreement between the President and the Prime Minister. If Mr Chihuri’s term of office expired and a reappointment took place after the expiry date or is still to take place, it is difficult to disagree with the stance of the MDC parties – notwithstanding the contrary opinion strongly expressed by the Attorney-General in a ZTV interview on 2nd February. As well as the constitutional provisions cited above, the following provision is relevant:
Constitution, section 93(2) states that “Subject to the provisions of an Act of Parliament, the Police Force shall be under the command of the Commissioner-General of Police, who shall be appointed by the President after consultation with such person or authority as may be prescribed by or under an Act of Parliament.”
The only way Mr Chihuri’s term of office might possibly have been extended outside the constitutional parameters set out above would have been if, prior to its expiry, the issue had been dealt with in the terms of section 6 of the Police Act, which makes provision for the President to extend the Commissioner-General’s period of service for up to twelve months at a time. But even this would have been open to different opinions on whether an extension is the equivalent of a reappointment.
It is obvious however that no such extension was done before Mr Chihuri’s term expired. The Prime Minister’s office ought to have been officially informed and it clearly was not; it was not made public in any way; the Attorney-General has used constitutional arguments to justify an action which, he seemed to imply, is still to be done; and there was no appropriate rebuttal when the PM refused to attend the National Security Council Meeting scheduled last Friday on the basis that as his term had expired Mr Chihuri should not attend.
Perhaps most importantly, apart from the legal questions, there is the point that in the public interest all parties in the inclusive government and also the general public should have confidence in the impartiality of the Commissioner-General of Police. If there is no general confidence in his impartiality, it may be in the country’s interests that we have a new Commissioner-General appointed with the agreement of the inclusive government, especially now that the country is heading towards elections.
Duration of the GPA
One report of the Attorney-General’s 2nd February interview on the position of the Commissioner-General suggested that the Attorney-General had said the GPA came to an end in February 2011. The statement must have come as a surprise to many, including President Zuma and SADC as guarantor of the GPA. As pointed out a year ago in Bill Watch 4/2011 there is no express statement in the GPA that it will come to an end on any particular date. Nor can a two-year life-span be read in by implication.
When the GPA was negotiated it was certainly expected by all sides that the Inclusive Government would last only about two years. It was also then expected that the constitution-making process would follow the timetable set out in Article 6 of the GPA. Then, assuming a “yes” vote in the referendum, a new constitution would have been enacted by Parliament not later than mid-October 2010. There would then have been time for the holding of elections and the formation of a new government under a new constitution before February 2011. But the constitution-making process is still far from complete and has not been abandoned or disowned by the GPA parties. So the GPA has remained in force.
Full communiqué not yet available Although the AU Summit ended on Monday 30th January, the full communiqué recording its decisions and resolutions has not yet been published. However, an AU press release dated 30th January announced that the Heads of States adopted “25 decisions, one resolution and two declarations” and clarified the effect of the Summit’s failure to agree on a new AU chairperson.
No election of AU Commission chairperson and deputy chairperson, and commissioners Neither of the two candidates for chairperson of the Commission – incumbent Jean Ping and Nkosazana Dlamini-Zuma of South Africa – could obtain the two-thirds vote stipulated in the AU constitution. After long debate the Summit therefore decided to:
• postpone not only the elections of the chairperson and deputy chairperson of the Commission, but also the elections of the other eight commissioners
• to set up an ad hoc committee as soon as possible to look into the election matter ahead of the next AU summit scheduled for June 2012 in Malawi, in the expectation that this committee will meet in March
• to extend the mandate of the present Commission until the next Summit.
The ad hoc committee will be made of Heads of State and Government of the following AU members: Benin [new AU chair], Gabon and South Africa [the countries of the candidates for Commission chair] and one from each of the AU regions [Central, Eastern, Northern, Southern and Western].
Election of members of AU Peace and Security Council Ten new Council members were elected for a two-year term ending in 2014: Cameroon and DR Congo [Central Region]; Djibouti and Tanzania [Eastern Region]; Egypt [Northern Region]; Angola and Lesotho [Southern Region]; Cote d’Ivoire, Gambia and Guinea [Western Region]. Zimbabwe’s current term of office on the council ends on 31st March 2013.
Status of Bills as at 3rd February 2012
[no changes since Bill Watch 2/2012 of 29th January]
[Electronic versions of these Bills available from [email protected]]
Bills passed by Parliament awaiting Presidential assent/gazetting as Acts
Small Enterprises Development Corporation [SEDCO] Amendment Bill [sent to President’s Office by Parliament on 30th September 2011]
Deposit Protection Corporation Bill [sent to President’s Office by Parliament on 8th December 2011]
Bill awaiting Second Reading in the House of Assembly
National Incomes and Pricing Commission Amendment Bill
Bills gazetted and awaiting presentation
Older Persons Bill [gazetted 9th September]
Urban Councils Amendment Bill [as gazetted by Parliament on 16th December]
Lapsed Bills from previous session awaiting restoration to the Order Paper
Public Order and Security [POSA] Amendment Bill [Private Member’s Bill]
Electoral Amendment Bill
Zimbabwe Human Rights Commission Bill.
Land acquisition – Whiteside Farm GN 22/2012, a last-minute addition to the Gazette dated 3rd February 2012, notifies the immediate acquisition by Government for “resettlement for agriculture” of Subdivision H of Whiteside, in the Goromonzi area.
Increases in mining fees SI 11/2012, dated 27th January and effective immediately, amends the Mining (General) Regulations to prescribe:
• new fees payable by registered holders of mining rights for the preservation of those rights [inspection fees, protection fees, site rent, etc]
• a new “designated mineral” levy.
• a new schedule of other fees, such as fees for registration of mining locations and for export permits, and fees for laboratory services and services provided by the Department of Mining Engineering.
[Electronic version of SI available from [email protected]] The increases are substantial. [Note: In his 2012 Budget statement in November 2011 the Minister of Finance forecast these increases. He said the major purpose of the increases would be “to discourage holding of mining claims for speculative purposes, thereby attracting credible investors in the mining sector”, and also that the revised fees would ensure “a sustainable fee structure commensurate with services rendered by the Ministry of Mines and Mining Development, thereby improving revenue inflows to the fiscus.”]
Government financial statements: GN 15/2012 gazetted the Government’s Consolidated Statements for November 2011, as required by the Public Finance Management Act.
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