THE Parliamentary Legal Committee (PLC) on Tuesday 2 March 2021 issued an adverse report on a Statutory Instrument which purportedly authorised government to increase deposit fines for people who breach national lockdown regulations and ruled that the piece of legislation is unconstitutional.
In its report which was tabled before a session held in the House of Assembly on Tuesday 2 March 2021, PLC Chairperson Hon. Jonathan Samukange said the PLC had concluded that Statutory Instrument 25/2021, which was gazetted in an Extraordinary Gazette published on Monday 25 January 2021 and which had the effect of increasing all deposit fines was ultra vires the Criminal Law (Codification and Reform) Act and therefore unconstitutional.
Samukange said the preamble of Statutory Instrument 25/2021 does not specify the Minister who had enacted the subsidiary legislation and this was in contravention of the Criminal Law (Codification and Reform) Act, which provides that either the Minister of Finance and Economic Development or the Minister of Justice, Legal and Parliamentary Affairs can increase the Standard Scale of Fines through a Statutory Instrument.
The PLC also stated that a draft of the Standard Scale of Fines was not tabled in Parliament before the Statutory Instrument was published as required by law.
The issuance of an adverse report on Statutory Instrument 25/2021 comes at a time when High Court Judge Justice Webster Chinamora on 19 February 2021 dismissed an urgent chamber application filed by Sheila Jarvis, a human rights lawyer and Zimbabwe Human Rights Association (ZimRights) seeking an order to stop government from implementing or enforcing new Standard Scale of Fines which had the effect of increasing all deposit fines.
In the application filed by Tonderai Bhatasara of Zimbabwe Lawyers for Human Rights, Jarvis and ZimRights had argued that government had erred by purporting to approve increases in deposit fines which police officers manning check points and roadblocks had already begun to implement during the national lockdown period.
Jarvis and ZimRights had argued that the enforcement of Statutory Instrument 25/2021 is a legal nullity and contravenes their right to equality and non-discrimination enshrined in section 56 of the Constitution.
The human rights lawyer and the human rights organisation said given the massive increases in the fines compared to the income levels of the general population, there is reasonable apprehension of irreparable harm that will be caused to many offenders who would fail to pay the increased fines yet eventually Statutory Instrument 25/2021 would be set aside.
Jarvis and ZimRights wanted Statutory Instrument 25/2021 to be set aside and be declared unconstitutional as it contravenes section 134(f) of the Constitution and section 280 of the Criminal Law (Codification and Reform) Act.
But Justice Chinamora dismissed the application after ruling that granting Jarvis and ZimRights’s order would be “akin to putting the cart before the horse” as any order he would issue declaring Statutory Instrument 25/2021 unconstitutional must as a matter of constitutional imperative, be referred to the Constitutional Court for confirmation before it can take effect while Statutory Instrument 25/2021 would remain in force.
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