Wednesday, 6 March 2019

PARLY BLOCKS CRIMINIALISING COMMAND AGRI ABUSE

THE Parliamentary Legal Committee (PLC) has once again rejected a Statutory Instrument promulgated by Minister of Lands, Agriculture and Rural Resettlement, Perrance Shiri seeking to criminalise breaching of the Command Agriculture programme by farmers.

The committee through its adverse report said the instrument was unconstitutional.
Contractual matters, read the report, can only be treated as civil matters and should not be treated as criminal.

Chairperson of the PLC, Cde Jonathan Samukange presented the adverse report in the Senate on Wednesday where he said the committee was dismayed by the persistence of the Ministry of Agriculture on the Statutory Instrument.


“The Statutory Instrument has been presented previously since 2013 and I think if my memory serves me right, this has been the fourth time it has been presented. For some funny reason, the Ministry does not want to give up,” said Cde Samukange.

“In the past three occasions or so, it has been up here, it has been brought in the National Assembly and the adverse report had been adopted by both Houses at different stages. Despite that, it appears that the Minister and the Ministry wanted to insist what they think is right and hopefully that they will convince you that as Members of the Parliamentary Committee, we are wrong and they are right,” he said.

Cde Samukange said when farmers access inputs they would have entered into civil contracts and thus should not be criminalised.

“It is the Committee’s view that the “Command Agriculture Programme (hereinafter referred to as Command Agriculture”), is a Government scheme which provides access to agricultural inputs and a platform for the sale of produce to the farmers. Command Agriculture beneficiaries enter into civil contracts with the Government – I repeat, enter into civil contracts with Government and this is the aspect that we feel is unfair because when you have entered into a civil contract, it is not, it does not and should not be criminalised,” he said.

Cde Samukange said his committee regards these contracts to be just like any civil contract regulated by the law of contract.

“As was stated by Innes CJ in the case of Rood and Wallach, 1904. TS “Every agreement …made deliberately and seriously by a person capable of contracting and having a ground of reason which is not immoral or forbidden by law may be enforced by action.”

When we say action, it means that contract can be taken to court but not to a criminal court. Action is another term that we use, for example when issuing summons, it is an action; when you use a court application, it is an action; when you use an urgent application, it is an action,” said Cde Samukange.

The adverse report by the PLC follows the promulgation of Statutory Instrument 247 of 2018 entitled Agricultural Marketing Authority (Command Agriculture Scheme for Domestic Crop, Livestock and Fisheries Production) Regulations, 2018.

Cde Samukange said Statutory Instrument 248 of 2018 creates a hypothec in favour of Government to secure the money value of inputs supplied but not consumed in accordance with the scheme of contract.

“A Statutory hypothec is a civil law principle that allows the unpaid creditor who has secured his loan with a hypothec to force the sale of property,” he said.
Senators supported the rejection of the Statutory Instrument saying Parliament cannot pass a law which is ultra vires the Constitution.

Last year, Minister Shiri defended the regulations, arguing that they were meant to secure Government interest on its investment given that it would have extended a loan to a beneficiary who was expected to pay back.

He said the sections did not criminalise breach of contract nor did it seek to enforce compliance with the provisions of the contract, but criminalised abuse and misappropriation of inputs by beneficiaries who sought to defraud the State through side marketing inputs.  Herald

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