Under the old constitution, Mugabe could invoke the Presidential Powers (Temporary Measures) Act that gave him unlimited power to make extraordinary decrees, but the new constitution adopted last year put an end to that.
The Presidential Powers, a remnant of colonial rule, enabled the president to make regulations he considered necessary to deal with any situation that might compromise national security, public safety and order, public morality, health or the economy.
Last year, President Mugabe caused an uproar when he used this legislation to dissolve Parliament ahead of the July 31 elections.
On January 3, three sets of regulations were gazetted under the Act – the Amendment of Money Laundering and Proceeds of Crime Act, the Amendment of Criminal Law (Codification and Reform) Act, and the Trafficking in Persons Act.
They were made in order to align local legislation with international regulations and to avoid the country being blacklisted by global financial institutions.
University of Zimbabwe law professor Greg Lennington told The Zimbabwean that, unlike the old constitution which did not emphasise the separation of power between the Executive and Legislature, the current charter ‘expressly stated the roles of each arm of government’.
“The regulations can be challenged in court, and the court would invalidate them based on what the constitution says,” said Lennington.
“It is unconstitutional for the Executive to promulgate legislation.”
According to the new constitution, the function of the legislature is to enact laws. It is specific that Parliament should not implement the laws or set itself up as the judge of their validity. It is the mandate of the Judiciary, through the courts, to decide disputes, including those on the validity of laws, and it is outside their jurisdiction to enact laws or try to implement them.
The Executive, comprising the president and his ministers, is to implement laws and must not adjudicate disputes or enact laws.
“If the Presidential Powers (Temporary Measures) Act is invalid, the three sets of regulations…are also invalid, and our law relating to money-laundering and financing terrorism is in the same unsatisfactory state it was in before they were published,” said Veritas, a local legal watchdog, in a recent instalment of its serialised Bill Watch.
“The country has spent many years working on the new constitution and we need now to have a culture of respect for it. This will not be achieved if we flout it by continuing to violate some of the basic principles,” said Veritas.
MDC-T Spokesperson Douglas Mwonzora said it was not proper for Mugabe and the government to continue using repealed sections of the constitution.
“Mugabe is used to violating the rule of law. The constitution is clear on the separation of powers but because old habits die hard even when they are against the law, these regulations were gazetted,” said Mwonzora. He said although the laws were necessary, Mugabe should respect the constitution and set an example of adherence to the rule of law.
“Zanu (PF) needs serious lessons on constitutionalism because it defies logic that as a country, we adopt a constitution and the next thing we fail to adhere to it,” said Mwonzora.
An analyst who spoke on condition of anonymity called on citizens to hold government accountable to the constitution. “There is a tendency among Zimbabweans to stand by and watch as their rights and the rule of law are violated. It is high time that citizens hold government and its departments accountable for their actions. If there is to be any meaningful change, then the people should also change their mind set and demand accountability, transparency and the rule of law.”
Charles Kwaramba of Zimbabwe Lawyers for Human Rights said for as long as no-one challenged the illegal use of the presidential temporary powers, there was a danger that the law would continue to be abused.
“Zimbabwean citizens are allowed to take Mugabe to court. But this means someone has to go to court and ask it to bar the temporary powers Act’s enforcement,” he said.Post published in: News