Tuesday, 2 March 2021

NEW FINES UNCONSTITUTIONAL : PARLY

Parliament yesterday outlawed the recently enacted new standard scale of fines relating to various offences after it emerged that the manner in which they were promulgated was unconstitutional.

The new fines enacted under Statutory Instrument 25 of 2021 saw the lowest fine under Level One being pegged at $1 000 up from $200 while the maximum fine under Level 14 was pegged at $1,6 million up from $800 000.

And yesterday, the National Assembly was unanimous in adopting an adverse report of a Statutory Instrument that was tabled by Parliament Legal Committee chaired by Mudzi South MP Cde Jonathan Samkange (Zanu PF).

Justice, Legal and Parliamentary Affairs Minister conceded to the adverse report and agreed that the Statutory Instrument be withdrawn and pledged to redo it properly and in a manner envisaged by the Constitution.

PLC is an arm of Parliament that scrutinises all laws and Statutory Instruments that come before Parliament to ascertain whether it is consistent with the Constitution.

In tabling its adverse report PLC chairperson Cde Samkange said the preamble of the Statutory Instrument does not specify which Minister had issued the regulations between Minister of Justice, Legal and Parliamentary Affairs or Minister of Finance and Economic Development both of whom were empowered to do so.

He said that omission made its enactment fatally defective at law rendering it unconstitutional. “The Statutory Instrument in its preamble does not specify the Minister who enacted it,” said Cde Samkange.

He said while the law allowed both Ministers to enact standard scale of fines they should do that under different circumstances.

Cde Samkange said while an assumption could be made that it was Minister of Justice, Legal and Parliamentary Affairs who enacted given that it was done in terms of Criminal Law (Codification and Reform) Act that was not enough to make such promulgation lawful.

He said the second reason that made the enactment unconstitutional was that the law provided that a draft of scale of fines should be tabled first in Parliament.

“In this instance no draft of standard of fines was tabled. It is therefore the Committee’s opinion that Statutory Instrument 25 of 2021 is ultra vires the enabling Act and therefore unconstitutional,” said Cde Samkange.

In response Minister Ziyambi agreed to have the proposed law on new fines withdrawn saying he will ensure that the proper procedure will be followed as envisaged by the Constitution.

The standard scale of fines had seen the lowest fines at Level One for minor Offences being pegged at $1 000 while the maximum fine of Level 14 was pegged at $1,6 million.

The new fines represented a 100 percent increase of Criminal offence as the Government sought to keep abreast with inflationary trends.

Offences in Level one are minor and can be administered at a police station through admission of guilty fines while serious Offences in Level 4 up to Level 14 will be taken before the courts. Some of the minor Offences include public drinking and driving without due care among others.

In an interview on the subject, Lawyer Mr Obert Gutu said: “A well-grounded principle of statutory interpretation provides that the repeal of a legislative provision does not operate retrospectively. The reversed fines were promulgated by a Statutory Instrument that has since been repealed or reversed. Unfortunately, those people who had already paid these exorbitant fines under the repealed SI are legally not in a position to claim refunds.’’

“The Parliamentary Legal Committee (PLC) is the Parliamentary watchdog against the promulgation of illegal and/or unconstitutional Bills and Statutory Instruments. However, it would be extremely interesting for our constitutional jurisprudence if any aggrieved person might want to take this matter up with the Constitutional Court.

To my knowledge, such a constitutional challenge has never been lodged before in our country so it would be intriguing to find out whether any concerned stakeholder might want to take this matter up with the country’s Apex court.’’he added. Herald

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