COLUMN | Common Law: Regulations – An entangled web

Common Law With Mike Murenzvi

“We now have so many regulations that everyone is guilty of some violation.” ~ Donald Alexander

Many regulations and statutory instruments that give guidance on the implementation of an Act are often made to address a specific situation at a particular time.

In most Acts, there is a clause that allows the Minister (or authority) in charge of the administration of the Act to make regulations regarding certain elements of the Act. The wording is usually along the following lines:

the Minister may make regulations prescribing anything which under this Act is to be prescribed or which in his opinion is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Depending on the nature and wording of the particular Act, you may find that there are the following types of regulations:

General regulations – that deal with the main implementation and guidance;

Exemption regulations – that deal with entities that are permanently exempt from the conditions of the Act or specific parts of it;

Suspension regulations – that deal with temporary conditions where the terms of the Act don’t apply to certain elements;

Specific regulations – that deal with very specific aspects under the Act.

While there may be main regulations under an Act that fall under the categories above, there is, in many cases, need to amend them for conditions and circumstances of the time. This has since given rise to much confusion over what regulations, or part thereof, are in force or what items they apply to.

No truer is this than in regulations affecting taxes (especially customs duties and tariffs), and local authority by-laws.

A cursory look at the statute schedules shows some regulations with amendments numbering well into the 50s and this makes for a greatly entangled web of confusion.

Making sense from the chaos

The Statute Law Compilation and Revision Act [Chapter 1:03] requires the Law Reviser to, amongst other activities:

  1. ensure that an up-to-date text of each statute is available as a single document;
  2. publish revised editions of the laws containing the statutes from time to time;
  3. publish any statute in revised form;
  4. publish in revised form any statutory instrument.

The Law Development Commission (LDC) regularly publishes an electronic compilation of Statute Law of Zimbabwe. This compilation puts together all Acts currently in force, along with their amendments, but doesn’t do the same for statutory instruments.

An amendment or repeal of an SI comes in the form of another SI but rarely do these changes replace the entire document, only specific sections. As an example, the Harare (Water) By-laws, SI 164 of 1913 (yes, you read that correctly – they were gazetted in 1913) have been amended 19 times through to 1998.

Without a comprehensive compilation, navigating statutory instruments remains a minefield of significant proportions as one can easily fall foul of the law with no leg to stand on.

See also previous article: Pedestrian Opinion | How our councils are retrieving old by-laws to make up for old negligence

Constitutional alignment

The enactment of the 2013 Constitution meant that a number of existing legal instruments (Acts and statutory instruments) were no longer in sync with the “new” Constitution.

Section 2 of the Constitution (Supremacy of the Constitution) states:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Using the same Harare (Water) By-laws mentioned earlier, we find conflict in the issue of water disconnections by urban local authorities. The SI includes a clause empowering the municipality to cut-off water supply to a property that is in arrears on its water bills, whereas the Constitution gives the right to water.

Section 8 of the Water By-laws states, “Council may, by giving 24 hours’ notice in writing and without prejudicing its right to obtain payment for water supply to its consumer, disconnect supplies to the consumer … if he shall have failed to pay any sum, which in the opinion of the council, is due under these conditions or the water by-laws.”

Section 77 of the Constitution states, “Every person has the right to safe, clean and potable water … and the State must take reasonable legislative and other measures, within the limits of the resources available, to achieve the progressive realisation of this right.”

This is a fundamental human right enshrined in Chapter 4 of the Constitution and according to section 45 of the same Constitution;

“(1) This Chapter binds the State and all executive, legislative and judicial institutions and agencies of government at every level.

(2) This Chapter binds natural and juristic persons to the extent that it is applicable to them, taking into account the nature of the right or freedom concerned and any duty imposed by it.

(3) Juristic persons as well as natural persons are entitled to the rights and freedoms set out in this Chapter to the extent that those rights and freedoms can appropriately be extended to them.”

In a 2014 judgment, then High Court judge, Chinembiri Bhunu, held the position that water disconnections by local authorities without a court order are unconstitutional.

It is such inconsistencies in existing subsidiary legislation that must also be looked at and corrected as part of the laws alignment process. While the framers of the 2013 Constitution did well in establishing various rights, freedoms and obligations, the work does not end there.

The current constitutional alignment process is concentrated on the various Acts but has not considered the associated statutory instruments.

I must commend the Centre for Applied Legal Research (CALR) for its work with the Inter-Ministerial Taskforce on Alignment of Laws (IMT). They are making progress in enhancing the capacity of ministry legal officers in drafting their respective laws (Acts) and tracking the alignment process as a whole. Once the Acts are complete, I hope the work will extend to statutory instruments.

Work of the Parliamentary Legal Committee, the Law Reviser and the LDC

The duties of the PLC that I mentioned in “Common Law | What is all Means”, include reviewing all statutory instruments for compliance with the Constitution and the enabling parent Act. This is not limited to new statutory instruments since the Constitution changed in 2013.

There requires a holistic review process of all active instruments such that they are also aligned and the enacting bodies are given necessary areas of correction.

This begins with the Law Reviser and the LDC compiling complete, current versions of all statutory instruments, as amended. From this point, a compliance review can begin in earnest. Each compilation of Statute Law of Zimbabwe includes a section with a list of active statutory instruments under each and every Act. This now needs to include the compiled versions of those regulations.

At the same time, all the bodies that prepare regulations for issue should conduct their own overhaul of those regulations to compile more robust and accessible documents.

To detangle the web and map it correctly will go a long way in easing compliance costs for our small economy.

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The views expressed in this article are the author’s personal opinions and should in no way be interpreted to represent the views of any organisations that he is associated or connected with. Feedback is greatly encouraged in the comments section below.

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