Common Law with Mike Murenzvi
“Law is made for man, not man for the law.” ~William Godwin
Thank you, readers, for your feedback on the first instalment in this series, it is greatly appreciated and encouraging. This series relies greatly on your feedback to steer its educative course forward.
In this edition, we take a dive into the some of the background work that happens before a Bill is presented to Parliament.
When crafting a law, there are three major questions that must be asked and answered:
- What is the social problem that needs to be addressed?
- How does the proposed law (Bill) seek to address the social problem?
- Do the detailed provisions of the Bill adequately address the problem with as little foreseen negative consequences as possible?
A social problem in this context is an issue that requires some form of legislation that doesn’t currently exist, to address it. The identification of a social problem can be done by any person or group of persons within the country and brought to the attention of Government and Parliament, as a body, or individually through a Member of Parliament, in the form of a petition or some other consultative process. In extreme cases, it may be identified through the courts, an example being the (still unaddressed) issue of child marriages.
Many organisations are involved in identifying social problems and proposing legal solutions to them, either individually or collectively. These include the following:
The Centre for Applied Legal Research – works directly with the Ministry of Justice through the Inter-Ministerial Taskforce on the Alignment of Laws to the Constitution;
Veritas Zimbabwe – evaluates and proposes changes to many of our laws, both existing and Bills under consideration of parliament.
Computer Society of Zimbabwe (and other ICT related organisations) – evaluated and proposed many changes to the original Cyber Crime Bill that resulted in its revocation to be redrafted.
Women’s Coalition of Zimbabwe – instrumental in bringing many necessary changes to domestic and gender-based violence laws.
A working approach used by a number of these organisations is that of compiling a comprehensive policy analysis report that details the problem, the current policies and their shortcomings, and the proposed solution.
This is the most effective method of getting required law changes in Zimbabwe. This generally involves an organisation approaching a specific Ministry with its proposals or petition, and engaging in several consultative meetings with officials until the proposals are accepted and proposed to Cabinet for further review. On acceptance by Cabinet, the Bill is presented as a Government Bill and follows the process detailed in the first instalment of this series, “From Bill to Law”.
This is often used to push Parliament to exert certain action over Government activity. Alternatively, it can be used to push Parliament to make certain changes to existing or proposed laws.
It should be noted that Zimbabwe doesn’t have a “publicly defined” petition format or process. The petitions process is defined in the Standing Orders (Rules of Parliament), and these rules are not easily accessible to the public, so we rely on formats from countries with a similar legal system.
A petition received by Parliament is first referred to the portfolio committee under which the particular issue falls, for review and further interrogation. This process involves public hearings to get further information from the petitioners as well as getting views of affected ministries, and other bodies. The committee then prepares a report with recommendations on how the petition should be handled, i.e. whether it should be accepted for debate or rejected.
An accepted petition is put up for debate in Parliament with the aim of leading to the request of the petitioner. In most cases, this is in the form of asking Parliament to make necessary laws to address the issue.
In practice, not much success has been seen through this process. A number of petitions on all manner of issues have been presented to Parliament without any tangible results being seen. This is because of two main reasons:
- There is no emphasis on motions that are not part of Government business; and
- Parliamentarians, generally, don’t want to go through a Bills process that isn’t led by Government. This Bills process is known as a Private Member’s Bill. More on it below.
Private Members Bills
Paragraph 3 of the Fifth Schedule to the Constitution (Members who may move Bills and motions) states:
“Subject to this Constitution and Standing Orders—
- any Senator may introduce any Bill into the Senate or move any motion for debate in the Senate or present any petition to the Senate;
- any Member of the National Assembly may introduce any Bill into the Assembly or move any motion for debate in the Assembly or present any petition to the Assembly;
- any Vice-President, Minister or Deputy Minister may introduce any Bill into or move any motion for debate in or present any petition to either the Senate or the National Assembly.
- any Member who has introduced a Bill into a House of Parliament may, after the Bill has been passed by that House, introduce the Bill into the other House.”
What this part of the Constitution means is that it’s not only Government ministers that can bring in Bills to Parliament. Any Member of Parliament (MP), from any party, can bring in a Bill to Parliament to address a social problem. The only limitation to this is that it must not affect taxes or approved Government expenditure.
The process of a Private Member’s Bill starts with a motion, where the proposing MP makes a case of the social problem that he or she would like to address by introducing a Bill, the desired result of the motion being to obtain permission from the House to introduce the Bill.
This is then seconded (supported) by another MP. From this point, there is debate in the House over the social problem, and the course of action. At the end of debate on the motion, a vote is taken to either allow the introduction or kill the process at its inception. Where introduction of a Private Member’s Bill is accepted, the process that we detailed in the first instalment, “From Bill to Law” ensues.
In almost all previous motions of this nature, the Government (led by the Minister of Justice) has made a counterargument that they already have a parallel process to address the same issue and that allowing a Private Member’s Bill first would either be counterproductive to their intentions or go against existing or proposed Government policy.
Coupled with the general trend that Private Member’s Bills are proposed by opposition party members, this led the ruling party to vote against most motions to introduce a Private Member’s Bill.
A game of numbers
Parliament is a mini democracy that relies on the numbers of representatives from each party in order to function effectively. In order for an ordinary motion or vote to pass, a simple majority of the members present is required.
To achieve greater effectiveness in its activities, it is better for no one party to have a super majority (two-thirds of the seats or more). Under our whipping system, where votes for a motion or Bill are largely directed along party lines and not the individual MP’s convictions, a super majority of one party in Parliament tends to render debates academic exercises in posturing alternatives.
For this reason, political parties should seek to reduce the level of majority of the party in Government as it improves the ability of Parliament to apply checks and balances on the other arms of the State.
Individuality of MPs, or lack thereof
As alluded to in the previous instalment, our political party systems are designed in such a way that MPs are more accountable to their party than the constituents who elected them to office. It is this lack of individuality that also diminishes the efficacy of the parliamentary process. The concerns of the constituents fall a far second place to those of the party.
Where, in other similar jurisdictions, parliament is highly active in the making of laws regardless of whether they are Government-led or privately led, here, we wait for the Government to lead the charge, no matter how long the process takes. In so doing, many issues remain unaddressed for far too long.
Effective and efficient law-making requires effective and efficient law-makers who follow the letter and spirit of their oath.
“I swear/solemnly affirm that I will be faithful to Zimbabwe, that I will uphold the Constitution and all other laws of Zimbabwe, and that I will perform my duties as a Senator/Member of the National Assembly faithfully and to the best of my ability.”
Feedback is greatly encouraged via the comments section below.
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 the he is associated or connected with.