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Tuesday, 22nd May, 2018

The Senate met at Half –past Two o’clock p.m.





          HON. SEN. CHIEF CHARUMBIRA:  I move that Order of the Day, Number 1, be stood over until the rest of the Orders of the Day have been disposed of.

          HON. SEN. TAWENGWA:  I second.

          Motion put and agreed to.



           Second Order read:  Committee Stage:  Resumption of Committee on an Adverse Report on Statutory Instrument No. 79 of 2017, Agricultural Marketing Authority (Command Agriculture Scheme for Domestic Crop, Livestock and Fisheries Production) Regulations, 2017.

           House in Committee.

           *HON. SEN. MASHAVAKURE:  On a point of order Mr. Chairman.

           THE DEPUTY CHAIRPERSON (HON. SEN. CHIEF CHARUMBIRA):  Do I have such authority?  When you sit here as Chair, is it a point of order to the President of the Senate or the Chairman?  I am not yet properly in the Chair, I have not even commenced work.  So, let me commence then I exist, at the moment I do not exist as yet. Anyway, because of the abundance of kindness, I welcome your Point of Order.

           *HON. SEN. MASHAVAKURE:  I thought that the Hon. Minister would start by tabling something then we put our comments.

           * THE DEPUTY CHAIRPERSON:  Order, order, I may have been absent but I was here when this was first tabled.  The Parliamentary Legal Committee said that they reconstituted then the Hon. Minister will respond and that has already been done.  We have passed that stage.

           The Adverse Report was tabled and the Hon. Minister tabled his report.  So now we are back on the clauses and nitty gritties but it was debated a long time ago.

           House in Committee

           HON. SAMUKANGE:  Thank you Mr. Chair, as you have already pointed out, the Hon. Minister responsible for this Statutory Instrument came and responded to the Adverse Report that had been made by the Parliamentary Legal Committee and presented to the Senate.  We have again constituted as a Committee to consider and ponder the Report that had been presented to this House.  Our position has not changed; we still maintain the position that we had made.  I will highlight the aspects that we consider very seriously but for the time being, let me just read back the Report that we have prepared as a Committee for you.

           In response to the submissions made by the Hon. Minister of Lands, Agriculture, Rural Resettlement, the Parliamentary Legal Committee does not divert from its view as explained in the Adverse Report on the Agricultural Marketing Authority Command Agriculture Scheme for Domestic Crop, Livestock, Fisheries and the Regulations, 2017, Statutory Instrument 79, 2017.  It is necessary that the Committee now responds accordingly.

           It is the Committee’s understanding that the Command Agriculture Programme began with contracts between Government and individuals who are beneficiaries to the programme.  I think I will pause here – the Statutory Instrument recognises that there exist contracts between Government and the beneficiaries.  The contracts are civil matters and not criminal matters.  That is where we differ with the Minister. 

Section 2 in the application clause states that, “regulations are additional to the contractual obligations agreed to by a contract farmer to the extent of an inconsistency with the contracted obligations, these regulations shall prevail”. It would therefore mean that the rules of contract apply under civil law. Despite the fact that Government is a party to the agreement, they are bound by the rules of contract which is the law. If there are any variations to a contract, then the two parties have to agree to it.

Further, the variation must not be promulgated as a Statutory Instrument. The Government as a party to the contract will be in breach of the contract by promulgating the variation clauses as law. Further, if the farmer breaches the contract, there are civil remedies available under the rules of contract.

Be that as it may, the Statutory Instrument was gazetted and it contravenes the rights embodied in the Constitution. The Committee still stands on the view that Sections 5, 6 and 7 criminalise the breach of contract. Again, I want to pause there and point out that this is our problem that you have a contract between two consenting human beings or beings; Government being a “being” for the purpose of the contract and the beneficiary being also an individual. These two parties have agreed that they will go into this contract.  They sign the agreement.  What is happening is that the Minister now wants to criminalise what the two parties had previously by consent agreed to.  In our view, we think that it is contravening the rights of the contracting parties.   

Therefore, it is unconstitutional as it contravenes Section 49 (2) of the Constitution, which states that “no person may be imprisoned on the grounds of inability to fulfill a contractual obligation”.  This is in the Constitution and this is why if previously a debtor fails to pay his debt, you would go either to the High Court or Magistrate Court and say this debtor has failed to pay his debt.  A judge or magistrate would then impose a fine and you are taken to Chikurubi or remand where you are sentenced.  Normally, it used to be 90 days that one had to serve but that has been outlawed. 

The Constitution says if you have entered into contract, it is up to the judgement creditor to find means of getting his debt but they cannot use the courts to imprison you because you have not committed a crime.  You go to someone and say my friend; can you lend me $10?  Your friend agrees and asks you when you are going to pay back.  You agree that you will pay tomorrow – tomorrow comes and no money is paid back and the friend keeps on postponing dates to pay back.  The lender cannot go to court and say the borrower has failed to pay back the $10 that I lend him, put him in prison.  You cannot do that and the courts will not allow that.

I am sure some of you may have seen that even the banks are now accepting only title deeds as guarantee, not personal guarantee because it is not a guarantee at all. If I turn around and say I am unable to pay, there is nothing that you can do.  Basically, that is our problem. 

When I was jurisprudence so many years ago, our lecturer who was Prof. Dr. Hutchins who was a medical doctor and not the economist used to say; he decided that he enjoyed teaching more than being on the operation table.  He used to teach medical jurisprudence.  One of his favourite saying was – when you have a law that criminalises innocent civilian citizens, that is bad law.  Law should not be there to cause innocent people to suffer.  Like in this case, a farmer who is in the rural areas is simply told that; get your contract, sign here and there. He asks where and they say here and the next thing you prosecute him and put him in prison.  That is not right, it is bad law.


Finally on that point, I have always said this; when we make laws, we must always remember that good laws are there to last forever.  We are not making them for ourselves.  We are not making these laws for this generation only but the laws are supposed to be there forever.  I have always used this example – when Chiluba was President of Zambia, he decided that he wanted to get rid of Kenneth Kaunda.  There was a rumour that Kenneth Kaunda or his son had stolen a motor vehicle.  Then Chiluba said right, I have got Kenneth Kaunda here now.  They quickly went to Parliament and made a law which said that if you are charged by the police and not the court, or if you are arrested for theft of a motor vehicle, the courts have no jurisdiction to release you until you have been tried and either convicted or acquitted. 

You know what happened; the first casualty of that law was Chiluba himself.  We must always remember this, that when we make laws we must always know that we might be victims. Therefore, we should make good laws and good laws as I said before, always stand the taste of time. It is on that basis that I urge you Senators to reject this bad clause which criminalises not only me, you or those whom you represent outside and some of them are very innocent.  I thank you.

House resumed.

Progress reported.

HON. SAMKANGE:  Thank you Mr. President.  I now, with the leave of the Senate move that this House, having given consideration to the report of the Parliamentary Legal Committee on Statutory Instrument No. 79 of 2017, Agricultural Marketing Authority Command Agricultural Scheme for Domestic Crop, Livestock and Fisheries Production Regulation, 2017 published in the Government Gazette in August 2017, resolve that the Statutory Instrument if enacted, would be in contravention of Section 3 (2) (g) and Section 49 of the Constitution. 

*HON. SEN. MASHAVAKURE:  Thank you Mr. President.  I have a question concerning Section 49 that is very clear in terms of contracts et cetera, but I want him to explain a few issues.  Most of us are thinking that if we have a drought, it is a crime but there is an issue about the selling of inputs.  Is there no section that attributes to that abuse of inputs?  Also is there something like a criminal contract because a contract is a contract, even marriage is a contract but at times it there are causes of adultery.  I have heard what the Constitution says but I want you to explain as a lawyer how abuse of trust on theft by conversion comes about.  Can it not be added to that when a person abuse the inputs and they do not use them as intended.  Should it be left like that?  That is where my issue is.  I thank you.

*HON. SEN. MAKORE:  Thank you Mr. President.  We agree with the issue on this law but our understanding is that it deals with civil things, meaning that the person and Government should engage each other.  The Legal Committee has shown us that what is frightening is on Section 6 and 7, that are seeking for other things to be criminalised on that agreement.  We are saying that the law should be enacted looking at the long-term effect.  We are saying we want it to remain civil and not to criminalised.  I thank you. 

*HON. SEN. CHIEF CHARUMBIRA:   Thank you Mr. President.  Even if you have not attended law school, it is basic law that mutual understanding that there should be criminal and civil.  My question is, those of the Attorney General who look at it, does it mean this has escaped them.  I want someone from the Attorney General to answer.  What Hon. Samukange is saying is right and it is constitutional.  If the Constitution is against that, then those from the Attorney General should be aware of it, what is the issue here at stake so that we argue on things that are clear.  We used to debate in the presence of the people from the Attorney General’s office, like Mr. Dias, but they are not here today.  I am baffled, how the Attorney General’s office  could have endorsed that Bill that contradicts the Constitution to be allowed to come to Parliament. Can someone explain how this comes to be. I thank you Mr. President.

*HON. SAMUKANGE:   As your Committee, we are saying if two parties are in agreement and they sign that this is what they are doing.  That what they have promised should not be used for the disadvantaged to be prosecuted as a criminal.  What you have said that the Government can sign and get into a contract with a person that if you harvest, you should not come and sell to me but you should look for buyers, can something like that happen? There is nothing like that.  We are saying, where two people get into agreement and they sign, if they do not stick to that and they take things that they were supposed to take for Command Agriculture and look for private citizens so as to source funds to pay school fees; that is what we mean theft by conversion and that is criminal.  They did not sign on the contract and that does not appear on the contract that you can go and sell your produce anywhere.  What we are saying is only contravention of that which has been put on paper and signed for, with the beneficiary representing themselves with the Government, should be criminalised.  That is what we are saying.  I thank you.

Motion put and agreed to. 

          On the motion of HON. SEN. CHIEF CHARUMBIRA, seconded by HON. SEN. TAWENGWA, the Senate adjourned at One Minute Past Three o’clock p.m. until Tuesday, 29th May, 2018.



Senate Hansard SENATE HANSARD 22 MAY 2018 VOL 22 NO 43