Government’s Abhorrence for Constitutionally Prescribed Liberalisation - The Instance of the General Laws Amendment Bill

On the 8th May, 2015 a long awaited General Laws Amendment Bill was gazetted. The proclaimed intention of the Bill is “to ensure that all Acts of Parliament in force before the new Constitution became effective are, to the extent of any inconsistency with the Constitution, aligned with the Constitution”. Of course the Bill falls far short of ensuring that all Acts of Parliament incorporate the changes brought about by the new Constitution. The Bill is mainly concerned with trivial amendments - such as altering the name of the “Prison Service” to the “Prisons and Correctional Service” etc. However, where the Bill is concerned with matters of substance, it breaks new ground in reflecting the ZANU PF Government’s distaste for certain parts of the new Constitution. This is most evident in relation to proposed changes to the Privileges, Immunities and Powers of Parliament Act.

The Act empowers Parliament to exercise jurisdiction over persons believed by Parliament to be in contempt of the body and to impose penalties on those determined to be so. Certain forms of contempt of Parliament are also criminal in nature. Hence, for example, those who give false evidence in Parliament or who accept a fee to promote or oppose a Bill commit contempts which are specifically stated by the Act to be offences at law and may also be charged in the Criminal Courts.

On the 18th May, 2004, while Parliament was in session, Roy Bennett MP, pushed Patrick Chinamasa to the floor of the House after reacting angrily to the comments made by the then Minister of Justice, Legal and Parliamentary Affairs. Bennett was found to be in contempt and sentenced by Parliament to a draconian and grossly disproportionate 15 months imprisonment for what was essentially an offence of common assault. The offence would, in the normal course of events, have attracted a small fine if it had been dealt with by the criminal courts.
It is probably with these events in mind, where the power of Parliament to impose punishment for contempt was abused to settle a political score, that the drafters of the Constitution determined that Parliament’s power in this regard (which even the General laws Amendment Bill concedes is overly broad) ought to be curbed. Thus section 148 of the new Constitution provides in relation to the Privileges, Immunities and Powers of Parliament Act that:

"no such Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of Parliament.''

Accordingly, this constitutional provision seeks to limit the punitive jurisdiction of Parliament such that in the cases of contempt which are also criminal offences, Parliament may only impose a fine. If the severity of the case warrants imprisonment, Parliament is enjoined to refer the matter to the Prosecutor-General.

The General Laws Amendment Bill makes it clear that there are those in the executive who do not like this constitutional provision. Contrary to the explicit provisions of the Constitution, the proposed amendments in the Bill intend to allow Parliament to impose a period of imprisonment in default of payment of any fine levied. This is a clear violation of section 148 which only permits the imposition of a fine by Parliament and not imprisonment.

The Memorandum to the Bill seeks to justify this blatant attempt to reverse the advance made by the new Constitution by seeking refuge in semantics. The proposed provisions of the Bill do not, we are told, violate the “spirit of the constitution” (they violate the letter of it also) because the penalty of imprisonment imposed by Parliament is, it is claimed, merely “administrative detention” and not in the nature of a criminal penalty as proscribed by section 148 of the Constitution.

This is just nonsense.

If the imposition by Parliament of a period of imprisonment for contempt which is stated by the Act to be a criminal offence is not in the nature of a criminal penalty, then nothing is. The Memorandum then goes on to justify the proposed power of Parliament to impose a period of imprisonment in violation of the Constitution by saying that fines are difficult to collect and that the period of imprisonment in default of payment will provide an incentive for the person convicted to pay, etc. In short, the Memorandum is saying that those behind the Bill do not agree with the Constitutional provisions, find them inconvenient and thus do not intend to implement them.

This is but the most blatant and obvious instance in the Bill of such an attitude to the new Constitution. There are other similar examples in the Bill. The new Constitution obviously intended that the death penalty for murder only be imposed in the most limited of circumstances. It thus provides that capital punishment is only applicable where murder has been committed in “aggravated circumstances”. Yet the Bill sets out an extremely wide range of circumstances which are to be deemed aggravating. The Bill also (as is notable with the Gender Commission Bill) demonstrates a deep antipathy for the independence of Commissions, seeking to interfere with the autonomy of the Zimbabwe Electoral Commission in relation to voter registration by affording the Minister unwarranted powers in this regard and seeking to allow the erstwhile Registrar-General of Voters to continue to play a role in voter registration by the back door.

It is unlikely that the Parliamentary Legal Committee, which is tasked to scrutinise Bills for Constitutionality will do anything in this regard – particularly in relation to an unconstitutionality which seeks extends Parliament’s power. The record of the Supreme Court and now Constitutional Court in checking executive excess is also abysmal. The Bill thus brings to the fore the fundamental defect of the Constitution, a Charter with a decent Bill of Rights and other salutary democratic provisions, which may never be implemented by a reluctant and recalcitrant government and subservient judiciary.

Derek Matyszak 19.05.15

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