[11th September 2014]
Both Houses of Parliament Are Sitting Again This Week
Extension of Defence Forces Retirement Age: Not Compliant with Constitution
Two statutory instruments gazetted on 5th September spell out an exception to the standard retirement age of 60 years for members of the Army and Air Force. From now on the retirement age will be 65 years for members who are “war veterans” as defined in the War Veterans Act,. The privilege applies to all ranks: SI 134/2014 is for non-commissioned members, SI 135/2014 for officers. Both SIs claim to have been made by the Minister of Defence in terms of section 113 of the Defence Act after consultation with the Defence Forces Service Commission. [Both SIs available from Veritas at the addresses given at the end of this bulletin.]
• Both SIs are invalid because they were made by the Minister of Defence, instead of by the Defence Forces Commission. Whatever section 113 of the Defence Act may say, the Minister of Defence no longer has the power to make regulations for the conditions of service of Defence Force members. Section 218 of the Constitution makes that clear when it provides for the Defence Forces Service Commission, albeit with the approval of the Minister, to make regulations to fix and regulate conditions of service of members of the Defence Forces, including their salaries, allowances and other benefits. In addition, before fixing those salaries, allowances and other benefits, the Commission must get the approval of the President, given on the recommendation of the Minister of Finance and Economic Development and after consultation with the Minister of Defence.
It is true that section 113 of the Defence Act still says on the printed page that the Minister of Defence may make regulations for conditions of service, but that merely reflects the different approach under the previous Constitution from 1994 onwards. As the supreme law, the present Constitution overrides any conflicting provisions in section 113 of the Act. And paragraph 10 of the Sixth Schedule to the Constitution, which deals with the continuation of existing laws such as the Defence Act, says that such laws must be “construed in conformity with” the Constitution. Those responsible for framing these two SIs should have been aware of this and proceeded accordingly.
• Did the Attorney-General’s Office check these SIs before gazetting? By long-standing convention, before any SI is sent to the Government Printer for gazetting, it must be checked for legality and clarity of content by a law officer in the drafting division of the Attorney-General’s Office. If that check took place in this case, the law officer doing it missed something that was not only fairly obvious, but also should have been on every law officer’s list of things to watch out for during a constitutional transition period.
• An object lesson What has happened with these two SIs provides an object lesson on why the alignment of existing laws with the Constitution is so important and why it should have been undertaken swiftly, with care and with an appreciation of the changes the Constitution necessitates.
• Unfair to others? If the regulations are to be reissued by the Defence Forces Service Commission, after the necessary prior approval and recommendation and consultation, there should be a pause for reflection about the position of those Army and Air Force members who are not war veterans. They may consider that denying them the benefit of retiring at 65 discriminates unfairly against them contrary to section 56 of the Constitution, even though section 23 envisages special treatment for veterans of the liberation struggle.
Filling Senate Vacancies: The Process Has Started
The coming into operation of the Electoral Amendment Act, 2014, on 20th August has enabled a start to proceedings to fill the two long-standing party-list vacancies in the Senate, both in seats formerly held by ZANU-PF.
In General Notices in a special Government Gazette published on 5th September, the Zimbabwe Electoral Commission [ZEC] gave official public notice of the vacancies:
• a Manicaland seat formerly occupied by the late Senator Kumbirai Kangai [GN 381/2014] – the seat that ZANU-PF is said to have reserved for former Reserve Bank Governor Gideon Gono
• a Mashonaland West seat occupied by Senator Edna Madzongwe until her election as President of the Senate [GN 382/2014].
At the same time ZEC invited ZANU-PF to nominate one qualified person to fill each of the vacancies.
To be qualified, a nominee must be a member of ZANU-PF, a registered voter, at least forty years of age and, in order to maintain the gender balance in the Senate, be of the same gender as the former incumbent, that is:
• male for the Manicaland seat, and
• female for the Mashonaland West seat.
The next steps in the process are laid down by section 39 of the Electoral Act as amended. ZANU-PF must submit the two names and ZEC, if satisfied they are qualified, must gazette notices giving details of the nominees and allowing registered voters an opportunity to lodge written objections to the nominations. [The whole process was described in more detail in Bill Watch 31/2014 of 25th August.]
Reminder: The vacancies have existed for over a year. They were not filled when they could have been, that is, during the six months when SI 85/2013, temporarily amending the Electoral Act under the Presidential Powers (Temporary Measures) Act, was in force. Once SI 85 expired and those temporary amendments fell away, the vacancies had to remain unfilled because the Electoral Act no longer contained any provision for filling party-list vacancies, whether in the Senate or the National Assembly. The Electoral Amendment Act, which was gazetted and came into operation on 20th August, included provision for the filling of party-list vacancies [the same amendments of section 39 of the Electoral Act as had previously appeared in SI 85]. This finally enabled ZEC to start the process for filling the two vacancies. No such vacancies have arisen in the National Assembly.
National Prosecuting Authority Act Still Not in Force
Although it was gazetted on 11th July, the National Prosecuting Authority Act has still not been brought into force by the fixing of a date of commencement for the Act in a statutory instrument, as required by section 1(2) of the Act. This so far unexplained delay is regrettable because it has potentially serious consequences.
The National Prosecuting Authority, headed by the Prosecutor-General, was set up on paper by the new Constitution with effect from 22nd August 2013, but section 259 of the Constitution (using the word “must”) left a great deal of essential detail to be provided for by Act of Parliament, such as the setting up of a National Prosecuting Authority Board to employ prosecutors to assist the Prosecutor-General and regulate their conditions of service. And this Act should have been operational with effect from the 22nd August 2013. [See the detailed discussion in Constitution Watch 4/2014 of 9th June.]
Until the Act has been brought into force and properly implemented by the appointment of the NPA Board and the regularisation of the employment of NPA staff members, the whole system of public prosecutions rests on foundations that are extremely shaky legally. To quote Constitution Watch 4/2014, the present situation is that “we have an NPA consisting of the Prosecutor-General and no one else. None of the former members of the Criminal Division of the Attorney-General’s Office have been appointed to the NPA because there is as yet no Board to appoint them. Hence only the Prosecutor-General can conduct prosecutions on behalf of the State because he is the only member of the NPA. Prosecutions conducted on behalf of the State by anyone else are open to challenge on the ground that the prosecutors had no title to prosecute.”
Postal and Telecommunications (Subscriber Registration) Regulations
a.k.a. the Spying Regs [SIs 142/2013 and 95/2014] : An Update
The Government’s first attempt to set up a compulsory centralised database of details of telephone and internet subscribers, and to regulate access to it by law enforcement agents and others, was made by the Postal and Telecommunications (Subscriber Registration) Regulations [SI 142/2013]. Those regulations had a critical public reception and were given an adverse report by the Parliamentary Legal Committee [PLC]. A lengthy delay then followed, during which during which there was consultation between the PLC and the President’s Office [which is the Government department charged with responsibility for the enabling Act in question, the Postal and Telecommunications Act]. Eventually, SI 142/2013 was repealed and replaced by a new set of slightly different but similarly titled regulations gazetted as SI 95/2014. That was on 13th June, and was followed by in July by the withdrawal of the PLC’s adverse report on the repealed SI 142/2013; this withdrawal made sense because the Constitution expressly permits the withdrawal of an adverse report that has been rendered academic by the repeal of the statutory instrument condemned by it. [These developments were tracked in several Veritas bulletins: Bill Watch 49/2013 of 7th October 2013, Bill Watch 15/2014 of 19th March, Bill Watch 26/2014 of 12th June and Bill Watch 29/2014 of 21st July.]
Criticism of SI 95 Bill Watch 29/2014 questioned whether SI 95/2014 had succeeded in overcoming the PLC’s objections to its predecessor, particularly whether access to the subscriber database had been definitively placed in the hands of the courts as desired by the PLC in its original adverse report on SI 142/2013. It also suggested that the SI is wholly or partly ultra vires, i.e., goes beyond the enabling powers granted by the Postal and Telecommunications Services Act.
PLC gives SI 95 a non-adverse report The PLC has today reported non-adversely on SI 95/2014. Despite this, the SI could still be challenged in the courts – not only on the basis of the constitutional right to privacy, but also on the ultra vires argument suggested in Bill Watch 29/2014 referred to above.
Correction of Errors in Bill Watch 34/2014
In the last section of Bill Watch 34/2014 dated 9th September, under the heading Government Gazette, the entries noting the gazetting of SIs 134 and 135/2014 on the defence forces retiring age and GNs 381 and 382/2014 each ended “[see detailed note above]” There were no detailed notes above; the detailed notes are in this bulletin [see above]. Both entries should therefore have ended “[see detailed note in Bill Watch 35/2014].” Veritas apologies for any confusion caused.
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