Introduction
One of the main purposes of the Bill, according to its explanatory memorandum, is to address gaps in the Civil Aviation Act that were identified by the International Civil Aviation Organisation in 2019. Many of the Bill’s provisions were enacted in regulations made by the President under the Presidential Powers (Temporary Measures) Act in June 2023, but the regulations were not followed up by amendments to the Act so they lapsed in December that year. Now the Ministry is seeking to fill the gaps in the Act permanently, five years after they were first identified and a year after the Presidential Powers regulations expired. There is no explanation for the delay.
Summary of the Bill
As we indicated earlier, the Bill will address “gaps” in the Civil Aviation Act to bring it more closely into line with the ICAO’s requirements. In addition the Bill will:
· Align some of the provisions of the Act relating to the Authority with the Public Entities Corporate Governance Act
· Increase penalties for contraventions of the Act – apparently this is one of the “gaps” identified by the ICAO in 2019
· Give the Director-General of the Authority power to issue orders and directives having the force of law, in order to set technical standards and deal with urgent situations
· Give the Authority’s inspectors wide powers of entry, search and seizure in order to enforce the Act
· Establish a special Regulations Development Committee to assist the Authority and the Minister formulate technical regulations under the Act
· Adjust the functions and finances of the Civil Aviation Authority of Zimbabwe (“the Authority”) following its separation from the Airports Company of Zimbabwe (Pvt) Ltd in 2018.
That is a very broad outline of the Bill. In this bulletin we shall deal with some of the Bill’s contents in more detail, but first we need to fill in a bit of background to the Bill.
The Chicago Convention and ICAO
Zimbabwe is a party to the Convention on International Civil Aviation of 1944 (the Chicago Convention), which established the International Civil Aviation Organisation (ICAO) as a specialised agency of the United Nations charged with co-ordinating international air travel. The Convention lays down rules governing airspace, aircraft registration and safety, security and air travel generally. Nineteen annexes to the Convention deal with subjects such as rules of the air, airworthiness and accident investigation, and specify requirements for each of these subjects in the form of standards and recommended practices (SARPs). Member States are expected to comply with the standards but not necessarily with the recommended practices. Even the standards are not completely mandatory, because article 38 of the Convention states:
“Any State which finds it impracticable to comply in all respects with any … international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure … or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. …”
So Zimbabwe is not obliged to comply with the Convention in all respects, and there may well be good reasons for not doing so: for example, many of the ICAO’s requirements for international airports are impractical for small rural aerodromes in Zimbabwe.
Some Good Features of the Bill
Regulations Development Committee
The Bill will establish a Regulations Development Committee composed of technical experts to advise the Minister on developing new regulations and amending existing regulations under the Act. This is an excellent idea which should be adopted more widely in our legislation. Many statutes require regulations to be made on matters such as public transport, plant husbandry, telecommunications, health services, and so on which require technical knowledge to understand. Enlisting experts to help with regulations could go a long way to improve our law.
National Air Transport Facilitation Committee
The Bill will establish a National Air Transport Facilitation Committee to ensure liaison between the Government and the civil aviation industry and co-ordination between relevant Ministries and agencies in order to provide efficient air transport services. This will encourage co-operation and foster trust between the Government and the industry and is another idea that could usefully be emulated in other statutes.
Some Problems with the Bill
Although the Bill has good features, there are some rather serious problems with it:
Increased fines
Many clauses in the Bill propose to increase penalties for contraventions of the Act to extremely high levels – ridiculously high levels, in fact. Apparently the ICAO recommended increasing existing penalties in the Act, but as we indicated earlier Zimbabwe is not obliged to follow that particular recommendation. In any event the proposed penalties are far too high.
New standard scale of fines
Clause 24 of the Bill proposes to give the Minister of Transport power to prescribe a Standard Scale of Fines applicable to offences under the Civil Aviation Act. This will override the current Standard Scale of Fines prescribed under the Criminal Law Code, which applies to all offences throughout our statute law. Under the Code the Minister of Justice has power to adjust the levels of fines on the Standard Scale up or down to take account of inflation and other changing circumstances. Our courts have become well used to fixing fines using the current Standard Scale.
It is most undesirable to allow individual Ministers to prescribe their own “standard” scales of fines which will apply to offences under specific statutes. It will fragment our statute law and make it even more complex than it already is. Courts will find it difficult to ascertain what fines should be imposed in particular cases if there are numerous “standard scales” to work from.
If the Minister of Transport considers that the fines prescribed in the Civil Aviation Act are too low, then he should either ask the Minister of Justice to increase the monetary amounts in the Criminal Law Code’s Standard Scale, or else ask Parliament to adjust the levels prescribed in the Civil Aviation Act, e.g. by amending “level five” to read “level ten”.
Civil penalties
The Bill will give the Director-General of the Authority power to impose civil penalties on people who contravene the Act. These civil penalties are almost certainly unconstitutional for the following reasons:
· They can be imposed in addition to criminal penalties; the fact that a person has been subjected a civil penalty will not prevent them being prosecuted for a criminal offence, and vice versa. This amounts to double jeopardy.
· Civil penalties are not subject to confirmation by a court of law, so the levying of a civil penalty will amount to an unconstitutional seizure of property since the penalty will not be handed over in accordance with a court order.
· If a civil penalty is imposed for an offence committed by a corporate body, all the directors and officers of the body will be deemed guilty of the offence – even if they have not committed it and knew nothing about it.
· There is no proper appeal against a civil penalty – a court will not be able to set a penalty aside except on procedural grounds.
Orders and Directives
The Bill proposes to give the Director-General of the Authority law-making powers. He will be able to make orders which will be in force indefinitely and will bind all persons generally. He will also be able to make directives which will be binding on all persons to whom they are addressed. These orders and directives will cover such matters as interpretation of technical standards, implementation of the Chicago Convention and “any measure” which the Director-General thinks fit. They will not be published in the Gazette but on the CAA’s official website. Security directives will not have to be published at all.
Orders and directives will be laws – indeed, the Bill’s memorandum says they will “have the force of law”. More specifically they will be “statutory instruments” as defined in section 332 of the Constitution, and as such they must be published in the Gazette in terms of section 134(e) of the Constitution. Since the Bill does not require them to be published in the Gazette like regulations, they will be unconstitutional.
Apart from that, it is contrary to the rule of law to confer such sweeping law-making powers on an official.
Powers of entry, search and seizure
A new section which the Bill proposes to insert in the Act will give inspectors unlimited powers of search, entry and seizure, going far beyond the very extensive powers given to police officers by the Criminal Procedure and Evidence Act. The powers set out in the new section violate the rights of privacy and protection of property set out in sections 57 and 71 of the Constitution, since they are not fair, reasonable, necessary or justifiable in a democratic society and are far wider than are necessary to achieve their purpose.
Inspectors certainly need to have power to enter and search premises and aircraft and to seize evidence, but their powers should be no greater than those conferred on police officers.
Conclusion
From what we have said in this bulletin it will be clear that while the Bill has some good features it contains provisions that need to be removed or extensively revised.
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