In its report which was tabled before a session held in the House of
Assembly on Tuesday 2 March 2021, PLC Chairperson Hon. Jonathan
Samukange said the PLC had concluded that Statutory Instrument
25/2021, which was gazetted in an Extraordinary Gazette published on
Monday 25 January 2021 and which had the effect of increasing all
deposit fines was ultra vires the Criminal Law (Codification and
Reform) Act and therefore unconstitutional.
Samukange said the preamble of Statutory Instrument 25/2021 does not
specify the Minister who had enacted the subsidiary legislation and
this was in contravention of the Criminal Law (Codification and
Reform) Act, which provides that either the Minister of Finance and
Economic Development or the Minister of Justice, Legal and
Parliamentary Affairs can increase the Standard Scale of Fines through
a Statutory Instrument.
The PLC also stated that a draft of the Standard Scale of Fines was
not tabled in Parliament before the Statutory Instrument was published
as required by law.
The issuance of an adverse report on Statutory Instrument 25/2021
comes at a time when High Court Judge Justice Webster Chinamora on 19
February 2021 dismissed an urgent chamber application filed by Sheila
Jarvis, a human rights lawyer and Zimbabwe Human Rights Association
(ZimRights) seeking an order to stop government from implementing or
enforcing new Standard Scale of Fines which had the effect of
increasing all deposit fines.
In the application filed by Tonderai Bhatasara of Zimbabwe Lawyers for
Human Rights, Jarvis and ZimRights had argued that government had
erred by purporting to approve increases in deposit fines which police
officers manning check points and roadblocks had already begun to
implement during the national lockdown period.
Jarvis and ZimRights had argued that the enforcement of Statutory
Instrument 25/2021 is a legal nullity and contravenes their right to
equality and non-discrimination enshrined in section 56 of the
Constitution.
The human rights lawyer and the human rights organisation said given
the massive increases in the fines compared to the income levels of
the general population, there is reasonable apprehension of
irreparable harm that will be caused to many offenders who would fail
to pay the increased fines yet eventually Statutory Instrument 25/2021
would be set aside.
Jarvis and ZimRights wanted Statutory Instrument 25/2021 to be set
aside and be declared unconstitutional as it contravenes section
134(f) of the Constitution and section 280 of the Criminal Law
(Codification and Reform) Act.
But Justice Chinamora dismissed the application after ruling that
granting Jarvis and ZimRights’s order would be “akin to putting the
cart before the horse” as any order he would issue declaring Statutory
Instrument 25/2021 unconstitutional must as a matter of constitutional
imperative, be referred to the Constitutional Court for confirmation
before it can take effect while Statutory Instrument 25/2021 would
remain in force.