This article addresses the issue of how President Mugabe has ruled by decree under the guise of delegated power to make legislation in terms of the Presidential Powers (Temporary Measures) Act. This piece of legislation, the Presidential Powers Act, is the centre-piece of the competitive authoritarian regime in Zimbabwe. It has reduced Parliament to the role of an extra in a political drama in which President Mugabe is the omnipresent character. An examination of the broad political and historical context of the Presidential Powers Act is important for purposes of understanding the latest decree by which President Mugabe has amended the Reserve Bank of Zimbabwe Act in order to pave way for the issue of the controversial bond notes. First, I must narrate an episode that illustrates more vividly the abuse of the Presidential Powers Act and for this I must return to 2013.
The error of 2013
Sometime in early June 2013, when it became apparent that President Mugabe and ZANU PF were relentlessly pushing for an early election without reforms, I considered the possible scenarios and concluded that the only way they could achieve this was if Cabinet agreed to amendments to the Electoral Act and Mugabe invoked powers under the Presidential Powers (Temporary Measures) Act.
In normal circumstances, the legislative process requires Cabinet to agree on a Bill and thereafter, the relevant Minister takes the Bill to Parliament. However, the legislative process takes long and there is no certainty that Parliament will agree to pass the Bill as recommended by Cabinet. This process involves consultations, debate and amendments. Since ZANU PF did not have control of Parliament in 2013, it did not want to risk taking the Electoral Amendment Bill through the normal legislative process. The safest option for ZANU PF was to get Mugabe to use his powers under the Presidential Powers Act and amend the Electoral Law through regulations.
Having concluded that this was how ZANU PF would play the game, I presented this to colleagues and advised that if we wanted to stop ZANU PF’s arrogant march towards an early election, our first point of resistance was at Cabinet level. Cabinet decisions are by consensus and the MDC Ministers were under no obligation to immediately agree to the Electoral Amendment Bill. I warned that if they agreed to the Electoral Amendment Bill, President Mugabe would invoke his powers under the Presidential Powers Act and amend the Electoral Act unilaterally, by-passing Parliament. Some colleagues thought President Mugabe would not do that. They also argued that in any event the Presidential Powers Act was now unconstitutional under the new Constitution.
This was correct. But I did not believe unconstitutionality would deter President Mugabe and ZANU PF. After all, the presumption of constitutionality holds that all legislation is presumed to be constitutional until repealed or declared otherwise by a court of law. In this case, the Presidential Powers Act existed in the statute books and in my view, President Mugabe and ZANU PF would use it notwithstanding the fact that it was unconstitutional. However, some colleagues thought President Mugabe would be reasonable and that after agreement in Cabinet, he would allow the Electoral Amendment Bill to go through the normal legislative process. Once in Parliament, where the MDC parties had the numbers, they would control the pace of its passage, thereby frustrating ZANU PF’s plans for an early election. This hopeful view had the numbers and won the day.
Frustrated but sure in my mind that President Mugabe and ZANU PF would resort to the Presidential Powers Act, I went back to my office and began to write a pre-emptive opinion piece, putting forward arguments why it would be unconstitutional to invoke the Presidential Powers Act to amend the Electoral Act. I intended to circulate it to a large number of stakeholders with an interest in Zimbabwe’s crucial election. I wanted to prepare them for what was coming. The same points I used then, arguing why the Presidential Powers Act was unconstitutional are applicable against the use of the same legislation to amend the RBZ Act to enable the RBZ to issue bond notes.
On Wednesday 12 June 2013, a day after Cabinet had sat and agreed to the Electoral Amendment Bill, there was widespread shock when two packages were delivered to the Prime Minister’s Office. One was a statutory instrument purportedly amending the Electoral Act and the other was a second statutory instrument proclaiming dates for the general election to be held on 31 July 2013. Both were issued by President Mugabe under the Presidential Powers Act. Needless to say, I was not surprised. President Mugabe had done exactly what I thought he would do. He had not consulted anyone outside his party and I suspect by the time they sat in Cabinet the previous day, the decrees had already been prepared.
But how had I known? It was not because I was privy to inside information, no. I had only placed myself in ZANU PF’s shoes and asked myself what I would do if I were them and wanted an early election. The answer was simple: I would not wait for the long legislative process. I would make use of the Presidential Powers Act. The fact that it was unconstitutional would not be a deterrent. This is why I had argued against agreeing to Electoral Amendment Bill amendments at Cabinet level because that was the only impediment that stood between them and issuing the decree. Once they secured the MDC Ministers agreement to the Electoral Amendment Bill, they had the missing piece of the jig-saw and they were ready to issue the decree, which they did the very next day.
By the time we arrived in Maputo later that week for the crucial Extra-ordinary SADC Summit, President Mugabe and ZANU PF were armed with presidential decrees confirming amendments to the Electoral Act, an election date and a Constitutional Court judgment compelling elections by 31 July 2013. It was a Herculean task, but one that we had partly created for ourselves.
Our collective misjudgement notwithstanding, use of the Presidential Powers Act to amend the Electoral Act was patently unconstitutional. It was one of the first acts by President Mugabe under the new constitutional dispensation and it marked a bad start. It showed that he was prepared to rule by decree, regardless of the new value system which the new Constitution sought to promote. There are a number of reasons why the Presidential Powers Act was unconstitutional.
Why use of the presidential decree in 2013 was unconstitutional
First, in the case of the Electoral Act, section 157 of the new Constitution made it clear that mandatory amendments to the Electoral Act could only be effected by “an Act of Parliament”, that is, primary legislation. The President can only issue regulations under the Presidential Powers Act, which do not qualify as “an Act of Parliament”. The Constitution has a clear definition of “an Act of Parliament” in section 131 (2) which defines it as a Bill which is “presented in and passed by both Houses of Parliament” and is “assented to and signed by the President.” The Presidential Powers Act allows the President to issue regulations but not an Act of Parliament. Plainly, using regulations to amend the Electoral Act where primary legislation was required was unconstitutional. Consequently, the 31 July elections were held under an invalid law. This illegality has haunted the government post-2013.
Second, section 134 (a) of the new Constitution makes it clear that only Parliament has the power to make primary legislation, which power cannot be delegated to anyone. It states in mandatory terms that,
“Parliament’s primary law-making power must not be delegated”.
The Presidential Powers Act only confers authority to make regulations, which are secondary legislation. Plainly, secondary legislation cannot be used to amend primary legislation as that would be a violation of section 134(a) which prohibits Parliament from delegating its primary law making power. Any argument that the Presidential Powers Act allows the President to amend primary legislation, even if is for a temporary period, is patently invalid and unconstitutional as it violates section 134(a). Parliament can only act in accordance with the Constitution and if it delegates its primary law-making power to the President, then it is totally unconstitutional. The attempt to amend the Electoral Act using regulations under the Presidential Powers Act was therefore invalid.
The third argument is particularly fundamental in the case of SI 133 of 2016 which purports to amend the Reserve Bank of Zimbabwe Act (the RBZ decree) by giving it the power to issue bond notes. The RBZ Act is primary legislation. Any amendments to the RBZ Act constitute primary legislation. It requires an authority with the power to make primary legislation to amend the RBZ Act and the only authority with that power is Parliament. As we have seen, per section 134(a) that power cannot be delegated. It means President Mugabe cannot lawfully amend the RBZ Act using regulations, as he has purported to do. He is trying to make primary legislation but he does not have that power. His actions are therefore invalid and the bond notes law issued under SI 133 of 2016 is invalid, void and of no effect. The defect is fatal. The only way to cure it is to dump SI 133 of 2016 and start afresh by taking the Bill to Parliament.
In summary, just as President Mugabe acted unlawfully and unconstitutionally in amending the Electoral Act in June 2013, he is also acting unlawfully and unconstitutionally in purporting to amend the RBZ Act using the same instrument of regulations under the Presidential Powers Act.
In 2013, President Mugabe got his way despite the illegalities of the election. However, those illegalities have haunted his government to this day, with key members of the international community refusing to acknowledge its legitimacy. This time, President Mugabe is using the same strategy to force bond notes into the economy despite the illegalities. Likewise, it is likely that these illegalities will haunt the bond notes.
The problem with the Presidential Powers Act
In its current form, the Presidential Powers Act has no place under the new Constitution. Its broad and arbitrary nature seriously undermines the principle of separation of powers, which is one of the foundational principles of the Constitution. Section 3(2)(e.) of the Constitution clearly states the “observance of the principle of separation of powers” as one of the key principles of good governance. The principle of separation of powers, the classic exposition of which was delivered by 18th century French Philosopher Montesquieu holds that power is divided between three arms of the state – the Executive, Parliament and the Judiciary. Parliament makes laws, the Executive administers and implements laws while the Judiciary interprets the law. A similar model was adopted in our Constitution. However, the Presidential Powers Act is a piece of legislation which allows wide ranging and arbitrary powers on the President to make laws, thereby infringing upon the territory of Parliament.
Delegated legislation
The problem arises from the fact that Parliament can delegate its power to legislate. In fact, there are very good and plausible reasons why Parliament is allowed to delegate its law making powers:
First, delegated legislation is necessary when the government has to deal with emergencies which cannot wait for the making of a law through the normal parliamentary process. The conduct of government must be done in accordance with the law, but if there is a gap, which needs to be quickly filled and there is no time to go to Parliament, it may be necessary under such exceptional circumstances to use delegated legislation. In practice, governments regularly use delegated legislation and every year thousands of pages of statutory instruments are issued and the bulk of the public knows very little about it. Usually, they are mundane and technical matters which do not attract the public’s interest. This bulk use of the secondary law-making process is a concern in many countries, including older democracies such as the UK.
Second, there are issues of detail which require technical experts and the general body of MPs is ill-equipped to deal with. MPs make the general rules and confer authority on the experts to fill in the detail through secondary legislation. There are safeguards to ensure that the experts act within the scope of authority conferred by the primary legislation. Therefore, when it comes to regulating financial services, the regulator may be better-suited to devise and issue rules dealing with technical issues such as authorisation of service providers, codes of conduct of banking professionals, etc. The logic is that these matters of technical detail are best left to experts or specialised agencies who then act through secondary legislation.
Third, the need for flexibility for government and its agencies to respond to changing situations warrants the use of secondary legislation. There are also some administrative issues which do not need to be included in primary legislation. They can be left to delegated legislation – in the form of statutory instruments. There are things like procedures and forms which are best dealt with under delegated legislation. For example, liquor licencing legislation requires certain applications and fees to be set and paid – these specific details may change from time to time and the form, procedures and rates are best dealt with under secondary legislation.
Overall, secondary or delegated legislation is an important part of the machinery of running government. It allows government to be flexible and adaptable but in all cases, the primary safeguard is that secondary or delegated legislation must not exceed the confines of primary legislation and the Constitution. If secondary or delegated legislation were prohibited completely, it would cripple government and Parliament itself would be clogged with matters that it would have to sit every single day of the year and perhaps more to deal with them. This would be unsustainable and inefficient. In fact, most of the laws are made through the agency of delegated powers. Yet, as we shall see, there are grave risks associated with this procedure.
Safety-valve mechanisms
While Parliament can confer authority to other public authorities to make secondary legislation and there are good reasons for it, there are certain measures that are carefully designed to ensure that this procedure is not abused. Section 134 specifies these safeguards, which include section 134(a) which has already been referred to – clearly prohibiting the delegation of primary law-making power to any other person.
Another important safeguard is that secondary legislation must not infringe or limit any fundamental right or freedom and secondary legislation must also be scrutinized and approved by Parliament. In addition, there is a Parliamentary Legal Committee established under section 152 and is responsible for scrutinising all Bills and statutory instruments to ensure that they are compliant. All the measures in section 134 were established to prevent the abuse of statutory instruments by the Executive.
These measures are an improvement upon the old Constitution which also allowed Parliament to delegate its law-making powers (section 32). Like the new Constitution, the old one had both substantive and procedural safeguards to minimize abuse. Specific legislation also has internal safeguards to prevent abuse. Therefore, in the case of the Presidential Powers Act, all delegated legislation made under it must be presented to Parliament within 8 sitting days of its promulgation and parliament has the power to amend the regulations. Furthermore, regulations made under the Presidential Powers Act lasts for not more than 6 months and it will expire unless approved by Parliament. These measures are designed as important checks on the power of the Executive.
Abuse of delegated legislation
However, although delegated legislation is useful and while there are in-built safety-valves to prevent abuse, there remain serious risks associated with this type of legislation.
We have already observed the risk of giving excessive powers to the executive which leads to interference with the principle of separation of powers. This principle is necessary to prevent dictatorship, particularly by the all-powerful executive arm of the state. The six month life-span of regulations under the Presidential Powers Act has not prevented abuse. It has enabled President Mugabe and ZANU PF to achieve their aim by the time the 6 months expires. This is what happened in 2013 – they used the Presidential Powers Act to enact amendments to the Electoral Act and force an early election and let the amending regulations expire after the election. They were no longer bothered and a new process of electoral reforms dragged on afterwards.
Another example of serious abuse of delegated legislation was the use of section 158 of the old Electoral Act which gave the President wide powers to unilaterally amend the Electoral Act, including powers to validate previously invalid actions. It allowed the President to make any statutory instrument “as he considered necessary or desirable to ensure the proper and efficient conduct of the election”. President Mugabe used this provision frequently to make unilateral changes to the Electoral Act, particularly in the run-up to elections. Naturally, this power to make delegated legislation gave him an unfair advantage over his competitors. He was both a competitor and judge in the same race and he did not hesitate to create advantages for himself. For example, in the 2002 elections President Mugabe used his power to exclude from voting all citizens who had allegedly lost citizenship rights after the abolition of dual citizenship. He also used it to limit the facility of the postal vote to members of the security services only. When Tsvangirai challenged this clear abuse of delegated legislation, his application was dismissed by the Chidyausiku Supreme Court on the flimsy basis that he lacked locus standi (legal standing to take action). This reasoning did not make sense given that Tsvangirai was a presidential candidate with a direct interest in the matter where his competitor was unilaterally changing the rules of the game just before the elections.
Another blatant abuse of delegated law-making power was after the 2000 general elections when MDC candidates challenged results in 37 constituencies and President Mugabe tried to nullify the legal challenges by issuing a statutory instrument to that effect. His reasoning was that the MDC candidates were foreign-sponsored and the legal challenges were disturbing the ZANU PF MPs from carrying on their duties. The Supreme Court, then still headed by Chief Justice Gubbay invalidated the statutory instrument, holding that it was a violation of the constitutional right of access to court. No doubt, it is such rulings that made Chief Justice Gubbay and fellow Supreme Court judges unpopular with the Mugabe regime. They were impediments to rule by decree and not long after that they were pushed out of office.
In 2004 President Mugabe issued regulations under the Presidential Powers (Temporary Measures) Act to amend the Criminal Procedure and Evidence Act – an amendment which became known as the Makamba Amendment since it was passed to thwart businessman and entrepreneur James Makamba’s bid to obtain bail. The decree allowed police to detain an individual suspected of so-called externalisation offences for a period of up to 30 days before being charged. It was vindictive and represented a usurpation of judicial powers by executive as well as an infringement of the rights to liberty and access to court.
In 1995, Strive Masiyiwa took the government to court challenging the monopoly of the Posts and Telecommunications (PTC), arguing that it was unconstitutional infringement of the freedom of expression. When he won his case at the Supreme Court, ending the PTC’s monopoly, President Mugabe issued the Presidential Powers (Temporary Measures Cellular Telecommunications Services) Regulations of 1996, under the Presidential Powers Act. The regulations effectively reversed the Supreme Court decision and sought to re-establish the PTC monopoly over the provision of cellular telephone services. Any other players had to seek approval from a ministerial committee. Masiyiwa challenged this again and later, after the Supreme Court intervened again, he was able to commence business. 20 years later, his business, Econet is one of the biggest companies in Zimbabwe.
These are just but a few illustrations of the numerous abuses of the Presidential Powers Act and other legislation which allows the President to make delegated legislation. It has been used to promote unilateralism, to by-pass Parliament, to give ZANU PF an unfair advantage, to block rivals, to reverse judicial decisions, to clamp down on fundamental rights and freedoms and much more. By-passing Parliament means it forestalls consultation and debate that normally accompany the normal and democratic processes of making legislation. This undermines the democratic process.
But in order to understand the repressive nature and abuses of the Presidential Powers Act, it is important to appreciate its historical origins.
A legacy of repression
The Presidential Powers Act was enacted in 1986, at a time when Zimbabwe was well on the path to establishing a one party system of government. The independence constitution drawn at Lancaster House at the settlement in 1979 had established a Westminster type of government – with a Prime Minister coming from the party with the majority in Parliament and a ceremonial President. In 1987, Constitutional Amendment No. 7 abolished this system, establishing a presidential system. The powers of the ceremonial President and the executive Prime Minister were combined in the office of an all-powerful Executive President. At the same time, there was a Unity Accord, which ensured PF ZAPU was swallowed by ZANU PF. This consolidated ZANU PF’s power and also centralised power in the office of the Executive President. The 1986 Presidential Powers Act was part of this broader framework of changes to the system of government in which power became centralised in the Presidency.
It became even more important after 1990, following the expiry of the state of emergency which had been maintained for 10 years after independence. Under the state of emergency, the government had been able to rule by decree during the first decade of independence, often by-passing a docile and captured Parliament, which was dominated by ZANU PF. It was more of a rubber-stamping institution. After 1990, the Presidential Powers Act became the weapon of choice in advancing the agenda of unilateralism in the law-making process. Even though ZANU PF was in full control of Parliament, Mugabe did not trust his MPs and preferred to make use of the Presidential Powers Act, by-passing them.
In effect, the Presidential Powers Act represented continuity not only from the first ten years of independence, but actually, from the colonial period. It was rule by decree in a supposedly new, democratic state. However, even then, it was intended to be used in a situation of urgency where there was no other alternative. In other words, it is a measure that must be used very sparingly and only as a last resort.
Other events were also happening during this same period which demonstrated centralisation of power in the presidency. For example, the Lancaster House Constitution had established a bi-cameral parliament which the House of Assembly and the Senate. In 1989, Constitutional Amendment No. 9 was passed to abolish the Senate on the reasoning that it was not necessary. However, the size of parliament actually rose from 120 to 150 members because 30 new members were added. All of them owed their appointment to the President, which strengthened his power over Parliament. 8 were Provincial Governors, 12 were non-constituency MPs and 10 were chiefs – who were appointed under the President’s watch. ZANU PF also created a Ministry of Political Affairs in 1987 headed by a senior Minister and whose purpose was to ensure that MPs adhered to the party line. It was essentially a Ministry that was designed to administer ZANU PF from the comfort of government. According to the senior minster, the Ministry was created to ensure that “the party is healthy, well-administered and that it functions properly”. (Hansard 16 August 1990). This Ministry was allocated $49,417,000 in the 1990 budget – effectively using taxpayers’ funds to finance a political party to the exclusion of others. This is indicative of the deep roots of the conflation between party and state and ZANU PF’s abuse of public funds and property.
Overall, the Presidential Powers Act and related powers were designed to centralise and consolidate power in the Executive, by-passing Parliament in crucial matters and to promote and support unilateralism in conducting the affairs of government. The Presidential Powers Act represents the residual elements of rule by decree first established by Ian Smith during UDI and inherited at independence under emergency legislation. The tradition has persisted over the years and it is hardly surprising that each time resort has been had to the Presidential Powers Act, the impact has been largely negative as far as fundamental rights and freedoms are concerned. In most cases, it has been used where government wants to force its way and does not want parliamentary or public scrutiny. It is the single most potent piece of legislation at the centre of the Zimbabwe’s authoritarian regime.
Tyranny of the Executive
One thing that distinguishes the current decree amending the RBZ Act and the 2013 decree amending the Electoral Act is that with the latter, it might be said Mugabe and ZANU PF were not in control of Parliament and they were running out of time, whereas, with the RBZ decree there are no such fears. Right now, ZANU PF has a healthy two thirds majority in Parliament. They knew about bond notes as far back as May 2016, more likely even earlier than that. In any event, they were sufficiently warned by citizens that their proposals were illegal as there was no law supporting the issue of bond notes. When former Vice President, Joice Mujuru challenged the legality of bond notes, the Constitutional Court dismissed the case on flimsy grounds and by its decision warned government that it needed to issue relevant legislation. So government has been aware for some time that there is need for legislation to support the bond notes issue. As such, there is no emergency. If there is, it is self-created and could be avoided by delaying the issue of bond notes while preparing legislation to go through the normal legislative processes. Why then has the government decided to adopt this image-soiling approach of introducing the sensitive matter of bond notes by presidential decree?
One explanation is that the government is simply too arrogant and does not care for its reputation or the effect of using a decree to deal with such a sensitive matter. ZANU PF is used to getting its way. It does not matter whether or not it is reasonable.
However, another explanation is to be seen in the pattern of behaviour shown by government this year, which can be summed up as the era of tyranny by the executive. This year alone, apart from others, there have been four important statutory instruments that have been issued by government or its agencies, with devastating consequences on fundamental rights and freedoms. Usually statutory instruments deal with mundane and technical matters and pass without anyone noticing except those in the relevant sectors. This year’s statutory instruments have had a profound effect on the population, touching as they do on sensitive matters of governance and rights.
One was SI 64 of 2016, which banned a large number of imports into the country and affected the livelihoods of thousands of small cross-border traders. It was passed without consultation under the guise of protecting local industry and was one of the elements that sparked citizens’ demonstrations earlier this year. The second was SI 101A of 2016, essentially an order to ban demonstrations in central Harare issued by the police in Harare. A third similar order was issued by police to extend the ban. The RBZ decree is the fourth important executive decree this year.
The pattern suggests a growing trend by the executive to by-pass Parliament in the law-making process. The trend demonstrates the Executive’s low regard for Parliament and its processes. There is no appetite for consultation or debate. The new Constitution requires legislation to be made by consultation with the public. Delegated legislation in the form of these decrees undermines this principle as there is no consultation. People just wake up and they are told there is a new law and they must comply. All the decrees have been bad and have affected fundamental rights and freedoms in grave ways, but the RBZ decree is worse in that it represents the Executive openly and flagrantly usurping the primary law functions of Parliament, contrary to section 134(a) of the Constitution.
Conclusion
When looking at the latest presidential decree, the temptation is to focus only on its illegalities. However, that would be too narrow. It is advisable to consider the decree in the context of the bigger picture. This is why this article has explored the historical dimensions of the Presidential Powers Act and demonstrated the negative uses to which it has been applied over the years. There are more negative instances which could fill up a number of pages and those cited here are merely illustrative. I have also demonstrated that the RBZ decree comes in the present context of regular use of decrees by the Executive in crucial matters where Parliament has been by-passed. The use of decrees illustrates a clear disregard for Parliament by the Executive, which undermines the principle of separation of powers and the democratic system. But above all, for all the rhetoric that the current leaders liberated people from Rhodesian system, the Presidential Powers Act is an illustration of the continuities of rule by decree crafted during the days of Emergency legislation under UDI. The personnel may have changed, many years may have passed, but the system crafted by Ian Smith has survived him and has been perfected by his long-serving successor. The RBZ decree is unlawful and unconstitutional, but focusing on it alone would be gross misjudgement. Zimbabwe’s problem is systemic. It is about a system in which power has been centralised and consolidated over the years and in which unilateralism by the Executive is the principal operating principle. The battle against the RBZ decree and bond notes might be fought and won, but as this article demonstrates, the systemic abuse of presidential powers is a war.
WaMagaisa
