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SENATE HANSARD - 28 MARCH 2012 VOL. 21 NO. 26

 

 

PARLIAMENT OF ZIMBABWE

Wednesday, 28th March, 2012.

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

 

PRAYERS

( THE DEPUTY PRESIDENT in the Chair)

ANNOUNCEMENTS BY THE DEPUTY PRESIDENT

APPOINTMENT OF SENATOR A. SIBANDA AS CHAIRPERSON OF THE THEMATIC COMMITTEE ON GENDER AND DEVELOPMENT

THE DEPUTY PRESIDENT: I have to inform the Senate that Senator A. Sibanda has been appointed as Chairperson of the Thematic Committee on Gender and Development.

SUSPENSION OF COMMITTEE BUSINESS

THE DEPUTY PRESIDENT: I also have to inform the Senate that all Committee Business is suspended with effect from Thursday, 29th March 2012 until Monday 7th of May 2012 in line with the approved Sitting Policy of Parliament.

SWITCHING OFF OF CELLPHONES

THE DEPUTY PRESIDENT: May I also remind hon. senators to switch off your cellphones as the business commences.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 127 OF 2011: WATER (SUB-CATCHMENT COUNCILS) (RATES) (AMENDMENT) REGULATIONS, 2011

First Order read: Consideration: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 127 of 2011 -Water (Sub-catchment Councils) (Rates) (Amendment) Regulations, 2011.

Senate in Committee.

MR. MUSHONGA: Mr. Chairman, in pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe, The Parliamentary Legal Committee met on the 25th of January 2012 at 1010hrs to consider Statutory Instruments that were gazetted during the months of November and December 2011. After deliberations, it unanimously resolved that an adverse report be issued in respect of Statutory Instruments 127 of 2011, due to the following considerations:

Statutory Instrument 127 of 2011 - Water (Sub-catchment Councils) (Rates) (Amendment) Regulations, 2011 (No. 6)

The proposed amendment to the Schedule (Sections 2, 3 and 4) creates three offenses of "Late registration penalty-commercial", "Late Registration Penalty-institutional" and "Tampering with dam basin and river beds (per) offense". The penalties for these offenses are fines of US$ 25.00, US$25.00 and US$100.00 respectively.

The Committee resolved that the penalty creating provisions impose fines above level 3. In terms of section 271(2) (b) as read with section 141 and 356 of the Criminal Procedure and Evidence Act [chapter 9:07] a fine above level 3 can only be imposed by a Court of law after fully canvassing the essential elements of the offense. This procedure is meant to afford an accused person the right to the protection of the law envisaged in section 18 of the Constitution. This is because an accused person cannot be convicted until a court has satisfied itself that the person is indeed pleading guilty. Therefore, Section 8 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act, and in so doing violates the right to the protection of the law.

Accordingly, this Statutory Instrument was found to be in violation of the Bill of Rights, particularly the protection of the law provision that is, Section 18 of Constitution.

SENATOR RUGARA: I am worried because I can not debate because I have no background information. Is there anywhere, where we can debate when we do not have knowledge? It is very impossible to respond without the information.

SENATOR KHUMALO: I am of the same sentiments.

House resumed.

Progress reported.

Report adopted.

MOTION

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 153 OF 2011: VALUE ADDED TAX (FISCALISED RECORDING OF TAXABLE TRANSACTIONS) (AMENDMENT) REGULATIONS, 2011 (NO. 5)

Second Order read: Consideration: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 153 of 2011.

Senate in Committee.

MR. MUSHONGA : In pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe, The Parliamentary Legal Committee met on the 16 th of March 2012 at 0910hrs to consider Statutory Instrument that were gazetted during the months of January and February 2012. After deliberations, it unanimously resolved that an adverse report be issued in respect of Statutory Instruments 153 of 2012 due to the following considerations:

Statutory Instrument 153 of 2011 - Value Added Tax (Fiscalised Recording of Taxable Transactions) (Amendment) Regulations, 2011 (No. 5)

Section 10 (1) is civil penalty - creating provision to be imposed on persons who fail to comply with section 3 of Statutory Instrument 104 of 2010. The civil penalty created is a fine of US$ 25.00.

The Committee noted that this civil - penalty-creating provision imposes fines above level 3. In terms of section 271(2) (b) as read with section 141 and 356 of the Criminal Procedure and Evidence Act [chapter 9:07] a fine above level 3 can only be imposed by a Court of law after fully canvassing the essential elements of the offence. This procedure is meant to afford an accused person the right to the protection of the law envisaged in section 18 of the Constitution. This is because an accused person cannot be convicted until a court has satisfied itself that the person is indeed pleading guilty. Therefore, Section 8 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act, and in so doing violates the right to the protection of the law.

The Committee has difficulties in understanding the rationale of the imposition of civil penalties by a Government department. The Committee notes that all penalties, civil or criminal, collected by Government departments accrue to the consolidated revenue fund. With the criminal justice system affording persons accused of breaching the law adequate protection as envisaged in section 18 of the Constitution of Zimbabwe, it is safer to use that system wherever possible.

Accordingly, this Statutory Instrument was found to be in violation of the Bill of Rights, particularly the protection of the law provision that is, Section 18 of the Constitution of Zimbabwe. This is because an accused person cannot be convicted until the Court has been satisfied or it has satisfied itself that the person is indeed guilty. Therefore, Section 8 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act and in so doing, it violates the right to the protection of the law. The Committee has difficulties in understanding the rationale of the imposition of civil penalties by the Government Department. The Committee knows that all penalties of civil criminal cases collected by Government departments accrue to the Consolidated Revenue Fund with the Criminal Justice System affording persons accused of breaching the law adequate protection as envisaged in Section 18 of the Constitution of Zimbabwe. It is safe to use that system wherever possible - that is the Criminal Justice System.

Accordingly, this Statutory Instrument was found to be in violation of the Bill of rights particularly the provision of the protection of the law as provided for in Section 18 of the Constitution. This is my report Madam Chairperson.

SENATOR KHUMALO: The absence of these Statutory documents in front of us here is rendering us listeners rather than participants. I would move that this debate be deferred until we get these documents in front of us. I hope Senators will support me on this one.

MR. MUSHONGA: Yes Madam Chair, I understand the concerns of the senators but unfortunately these Statutory Instruments are issued to both Houses whenever they come. And also, probably, we are going to make an arrangement in future for those Statutory Instruments which are coming so that the Parliamentary Legal Committee and its staff make sure that when we debate then those are made available because we have a tendency that when they are put in our pigeonholes we take them home and do not bring them to Parliament again. So, for future purposes, they are going to make sure that on the date when we present those reports - we bring those Statutory Instruments.

SENATOR CHITAKA: The request from Senator Khumalo and the response by Hon. Mushonga means that there would not be much debate generated. Is it possible to combine all five and consider them as a bloc? It is just taking too long.

THE TEMPORARY CHAIRPERSON: It is not possible because all these are different all together. So, we have to consider them one by one.

Senate resumed.

Progress reported.

Report adopted.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 9 OF 2012: NORTON TOWN COUNCIL (TRADING) BY-LAWS, 2012

Third Order read: Consideration: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 9 of 2012.

Senate in Committee.

MR. MUSHONGA: In pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe, The Parliamentary Legal Committee met on the 16 th of March 2012 at 0900hrs to consider Statutory Instrument that were gazetted during the months of January and February. After deliberations, it unanimously resolved that an adverse report be issued in respect of Statutory Instruments 9 of 2012 due to the following considerations:

Statutory Instrument 9 of 2012 - Norton Town Council (Trading) By-Laws, 2012

The proposed section 7 (Offences and penalties) of S.I. 9/12 prescribes that the contravention of sections 4(1) (operating a business listed in the First Schedule without a trading permit and on a site or area other than the one specified in the permit) and 5(1) (trading with an expired permit) is an offence. The penalties for these offences are fines "not exceeding level five".

The Committee resolved that this penalty creating and fine imposing provision allows the imposition of above level 3 without any due process. In terms of section 271(2) (b) as read with section 141 and 356 of the Criminal Procedure and Evidence Act [Chapter 9:07] a fine above level 3 can only be imposed by a Court of law after fully canvassing the essential elements of the offence. This procedure is meant to afford an accused person the right to the protection of the law envisaged in section 18 of the Constitution. This is because an accused person cannot be convicted until a court has satisfied itself that the person is indeed pleading guilty. Therefore, Section 7 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act, and in so doing violates the right to the protection of the law.

Accordingly, this Statutory Instrument was found to be in violation of the Bill of Rights, particularly the protection of the law provision that is, Section 18 of Constitution.

SENATOR CHIEF CHISUNGA: Mine is just a concern that, I do not believe that I was elected to come and rubber stamp something that I have not understood. Even though the Chairperson has explained the areas where he thinks or where the Committee thought there were some contravention to certain rights of individuals, I believe that it is our right as senators to set our eyes on the said Statutory Instruments, so that we have time to research. I think we are the last House to approve any law. If we now start to condone a culture of Chairpersons or Ministers just coming in with some documents which we do not know and have not read. I think it is unfair. That is my concern Madam Chair. I fully understand what has been presented. I do understand, but it is unfair for us as senators.

SENATOR CHITAKA: Much as I agree with some of the sentiments raised by Hon. Chief Chisunga, there has been precedents. This is not the first time that we have been asked to rubber stamp, let me use the rude words, "rubber stamp". There have been several but let me quote a few, we have had treaties, protocols that I only see it on the Order Paper, but I never had sight of them. We have passed them on the understanding that we trust the Minister who is presenting. I can give you the whole list, we passed a lot of stuff without reading it. That is true. We can not be stubborn for the sake of being stubborn. Let us be true to ourselves. Half of these things even if they are put on our pigeon holes we do not read them anyway. Let us not be pedantic. Let us facilitate it and finish and go to the business of the day.

*SENATOR FEMAI: Speech not recorded due to technical fault.

*SENATOR CHABUKA: Speech not recorded due to technical fault.

MR. MUSHONGA: Yes, with due respect. like I said, these are given to us as they come out and they are given to both Houses. Secondly, because of taking care of the concerns raised we are going to make sure that my office, the Parliamentary Legal Committee Office, makes available the Bills when we present. Just a point of correction. These adverse reports is a converse. We start presenting them in the Senate before we go to the House of Assembly. There will be another debate if need be in the House of Assembly. The first is before the Senate and then we take them to the other House. It is just the converse of what we normally do. There is still another chance where if you don't see it, the other person, hon. senators can pick one or two things.

Senate resumed.

Progress reported.

Report adopted.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 10 of 2012: WATER (SUB-CATCHMENT COUNCILS) (RATES) (AMENDMENT) REGULATIONS, 2012 (NO. 6)

Fourth Order read: Consideration: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No.10 of 2012.

Senate in Committee.

MR. MUSHONGA: In pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe, The Parliamentary Legal Committee met on the 16th of March 2012 at 0900hrs to consider Statutory Instrument that were gazetted during the months of January and February. After deliberations, it unanimously resolved that an adverse report be issued in respect of Statutory Instruments 10 of 2012 due to the following considerations:

Statutory Instrument 10 of 2012 - Water Sub-catchment Councils) (Rates) (Amendment) Regulations, 2012 (No. 6)

The proposed amendment to the Schedule (Sections 2, 3 and 4) creates three offences of "Late registration penalty-commercial", "Late Registration Penalty-institutional" and "Tampering with dam basin and river beds (per) offence". The penalties for these offences are fines of US$ 25.00, US$25.00 and US$100.00 respectively.

The Committee resolved that this penalty creating provisions impose fines above level 3. In terms of section 271(2) (b) as read with section 141 and 356 of the Criminal Procedure and Evidence Act [chapter 9:07] a fine above level 3 can only be imposed by a Court of law after fully canvassing the essential elements of the offence. This procedure is meant to afford an accused person the right to the protection of the law envisaged in section 18 of the Constitution. This is because an accused person cannot be convicted until a court has satisfied itself that the person is indeed pleading guilty. Therefore, Section 8 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act, and in so doing violates the right to the protection of the law.

Accordingly, this Statutory Instrument was found to be in violation of the Bill of Rights, particularly the protection of the law provision that is, Section 18 of Constitution.

Senate resumed.

Progress Reported.

Report adopted.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 11 OF 2012: MINING (GENERAL) (AMENDMENT) REGULATIONS, 2012 (NO. 16)

Fifth Order read: Consideration: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 11 of 2012 - Mining (General)(Amendment) Regulations, 2012 (No. 16).

Senate in Committee.

MR. MUSHONGA: Mr. President, in pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe, The Parliamentary Legal Committee met on the 16th of March 2012 at 0910hrs to consider Statutory Instruments that were gazetted during the months of January and February 2012. After deliberations, the Committee could not reach a consensus on Statutory Instrument 11 of 2012. In compliance with Standing Order 205 (3), members of the Committee legally qualified as envisaged by section 40A of the Constitution voted and on a majority of 2:1. (with Honourables Mushonga and Gonese concurring and Honourable Mangwana dissenting) the Committee resolved to issue an adverse report on the statutory instrument due to the following considerations:

Statutory Instrument 11 of 2012 - Mining (General) (Amendment) Regulations, 2012 (No. 16)

The second Schedule to the Statutory Instrument sets several fees under the categories of application fees, special Licence fees, registration fees, ground rental fees, Export permit fees, Fire Assay fees amongst others. It is pertinent to note that in the case of application fees, they are non refundable. There is no regard to whether the application would succeed or not. Yet they range from a minimum of $5 000 for an application for registration as an approved prospector to a maximum of $1 million for an application fee for diamonds.

Besides application fees, there are other categories of fees such as those for the registration of ordinary platinum blocks ($2,5 million). Generally, the fees imposed by the statutory instrument are very hefty. They impose a heavy financial burden on citizens and non-citizens alike who opt to invest in the mining sector. These hefty fees have been imposed through a statutory instrument, with little, if not nil, input from ordinary Zimbabweans through their elected representatives. Legal instruments that impose hefty financial burdens are more appropriate for legislative enactment to the extent that this is the only way that ordinary citizens would be able to have an input into the process through their elected representatives. To this end, the Parliamentary Legal Committee decided to exercise its mandate in terms of the Constitution of Zimbabwe as well as the Standing Orders. Section 40B (3) of the Constitution of Zimbabwe provides as follows:

(3) The Parliamentary Legal Committee-

(b) shall perform such other functions as may be prescribed by or under an Act of Parliament or in Standing Orders.

In providing for additional terms of reference for the Parliamentary Legal Committee, House of Assembly Standing Order 201 (1) reads as follows:

Apart from its mandate specifically provided for in section 40B of the Constitution, the Parliamentary Legal Committee shall have the following additional terms of reference:

(1) The Parliamentary Legal Committee shall ensure that no Statutory Instrument shall-

(a) contain matters more appropriate for parliamentary enactment…

Thus, acting in terms of this Standing Order, the Parliamentary Legal Committee, formulated the view that the statutory instrument is unconstitutional in that it contains matters that are more appropriate for parliamentary enactment. This is in violation of the said Standing Order, which was duly made in terms of the Constitution of Zimbabwe.

The Committee also noted with concern that the statutory instrument is ultra vires the enabling Act. The statutory instrument purports to have been enacted through the Minister's regulation - making powers in the Mines and Minerals Act [Chapter 21:05], that is, section 403. The said section does not give any competence to the Minister to make regulations prescribing application fees. The closest that the section attempts to do so is in paragraph (q) which provides as follows:

(q) search and inspection fees, fees for duplicate copies of certificates issued under this Act, and any other fees, charges, levies, sums, amounts or payments required or permitted to be prescribed for the purposes of this Act.

However, in terms of this section the fees that can be prescribed by the Minister are specifically mentioned. The Minister may prescribe other unspecified fees, but this is limited to fees permitted by the Mines and Minerals Act. Application fees, for instance, for diamonds, pegged at $1 million dollars, are not permissible in terms of the enabling Act.

To buttress this, the Committee noted that the Minister did not even provide a motivation to the statutory instrument. Section 403 (1) provide that the purpose that the regulations are supposed to serve, and thus should be quoted as the motivation of the statutory instrument. The said section provides as follows:

(1) The Minister may make such regulations, as he may deem expedient to give force or effect to this Act or its better administration.

That way, the Minister would have stood guided as to whether the statutory instrument is giving force or effect to the Act or is meant to enhance better administration of the Act.

Due to the aforesaid, the Committee resolved on a majority of 2:1 to issue an adverse report on the Statutory Instrument. The Minister did not even provide a motivation to the Statutory Instrument. Section 403, subsection 1 provides that the purpose that the regulations are supposed to serve in other words he does not motivate us as to what the Minister wants to achieve by the exorbitant fees. Section 403, subsection 1 provides the purpose that the regulations are supposed to serve and that should be quoted as the motivation of the statutory instrument. The second section provides as follows: The Minister may make such regulations as he may deem expedient to give force or effect to this Act or its better administration. That way the Minister would have stood guided as to whether the Statutory Instrument is giving force or effect to the Act or not, as is meant to give effect to the Act. Due to the aforesaid, the Committee resolved on a majority of two to one to issue and adverse report on the Statutory because most of our people, the makorokoza will not afford the fees. I thank you.

SENATOR JACOB : Thank you Madam Chair, I have risen to support what the Chairman said. If you look at the charges for prospective licence for granite it was $75, but has now risen to $2000 and the licence for gold has rised to $5000 which defeats the indigenisation empowerment. The searching fee for black granite was $50 and it has been put at $5000 and I think it is just too much. I think that should be rectified. I thank you.

SENATOR CHITAKA : I want to buttress what my brother Senator Jacob has said. We cannot pass this without commenting. I want to commend the PLC for the courage to stand up. What you have done goes beyond just striking a statutory instrument off. We talk about our sovereignty and our natural resources. How many black people of this country were going to be able to pull out $1 million as a form application fee. Whoever wrote this must be investigated. What was his real intentions. Aida kutengesa nyika munhu uyu. I think we must go beyond this instrument and investigate whoever wrote this statutory instrument must be brought to the relevant committee and asked to answer who he/she intended to sell the application forms for $1 million to. I thank you.

MR. MUSHONGA: Madam Chair, I am really thrilled by the response of the hon. senators. Despite the fact that the voting went along political lines I am however happy that both sides of the Senate see the reason why the adverse report was put. We want to protect our people who want to go into mining and most of them the makorokoza are unlicenced but we still want them to have a life. I thank you.

Senate resumed.

Progress reported.

Report Adopted.

THE DEPUTY MINISTER OF HIGHER AND TERTIARY EDUCATION: I move that the debate do now adjourn.

Motion put and agreed to.

Debate to resume: Thursday, 29th March, 2012.

On the motion of THE DEPUTY MINISTER OF HIGHER AND TERTIARY EDUCATION, the Senate adjourned at Twenty Minutes to to Four o'clock p.m.

 

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Senate Hansard Vol. 21 SENATE HANSARD - 28 MARCH 2012 VOL. 21 NO. 26