TAKUDZWA HILLARY CHIWANZA
HARARE – Last week, the Zimbabwean government announced a proposed law that would require motorists to purchase a radio licence before obtaining vehicle insurance, unless exempted by the Zimbabwe Broadcasting Corporation (ZBC).
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| The New Parliament Building in Mt. Hampden. |
This proposal followed the Cabinet's approval of principles to amend the Broadcasting Services Act. However, the public impression is that this is already a law in force, reflecting the government's legislative intent rather than a finalised law.
The announcement highlighted the need for greater public understanding of Zimbabwe's law-making process.
Following the announcement, which was largely reported as an already effective Act of Parliament, Nick Mangwana, Permanent Secretary in the Ministry of Information, Publicity and Broadcasting Services, clarified on social media that this is still a proposed law. He stated that the Cabinet had only approved the principles to amend the Broadcasting Services Act, making it mandatory for motorists to purchase radio licences before acquiring vehicle insurance.
The approval of principles by the Cabinet is just the first step in bringing a proposed law into reality. Several other processes must take place, including debate and passage in both houses of parliament, and ultimately the presidential assent that brings it into force.
This situation underscores the importance of understanding the law-making process, a fundamental component of societies worldwide, which requires public input. The aim of this article is not to evaluate the merits of the government's proposed law, but to clarify the law-making process so that people can follow it and know how to contribute to the crafting of the law.
Who makes laws in Zimbabwe?
According to Section 116 of the Constitution, legislative authority in Zimbabwe, the power to make and enact laws, rests with Parliament and the President. Parliament consists of two houses: the National Assembly and the Senate. Parliamentarians are elected by the electorate, with some elected via quotas for proportional representation to include marginalised groups such as women, the disabled, chiefs, and the youth.
However, all legislative authority originates from the people of Zimbabwe, as provided by Section 117. It is then exercised in accordance with the Constitution by the Legislature, which includes Parliament and the President. Parliament debates the proposed laws, known as Bills, and the President signs or assents to the Bill, making it an effective law in the country.
This process raises important discussions about the principle of the separation of powers, a cornerstone of any democratic setup. It becomes more pronounced when it is clear that in almost all instances, the laws originate from the Cabinet, which is part of the executive.
The fact that the President, who is part of the executive, is also part of the Legislature seems to undermine the principle of the separation of powers. At law, the President is a separate organ from Parliament, yet the President has the power to accept or reject the laws that Parliament has made. Essentially, this means that the President has the final say in Zimbabwe's law-making process.
Bills in Zimbabwe: Origin, debates, and presidential assent
Parliament can only legislate through the passage of bills, which must ultimately receive presidential assent to become law. The Constitution's fifth schedule outlines some, but not all, aspects of the law-making process.
The Pre-bill stage
Before a bill reaches Parliament for scrutiny and debate, it must originate from a source or individual. Public bills undergo numerous preliminaries before they are presented to Parliament. The pre-bill stage represents the initial stage of the law-making process, leading to the finalization of the proposals contained in the bill sent to Parliament for scrutiny and debate.
In Zimbabwe, this process is predominantly a political one, heavily dominated by the executive through the Cabinet. Public bills can originate from various sources, including but not limited to political party manifestos, government departments, commissions of inquiry, parliamentary portfolio committees, and responses to national disasters.
A significant issue is the extent to which the government is obligated to consult interested parties before presenting a bill to Parliament. Under Zimbabwean law, there is no legal obligation for the Government to consult, much less be bound by the views of, any person before presenting a bill to Parliament. Consultations are conducted at the Government's discretion. In Zimbabwe, legislation is initiated by the executive.
The process by which law proposals become effective law is mostly done in clandestine procedures, but generally appears to follow these steps:
1. The Cabinet makes a policy decision that a certain law is to be made, for example, making it mandatory for all motorists to purchase a radio license.
2. The decision is communicated to the relevant government department by the appropriate ministers. The department must then prepare a set of detailed principles to govern the legislation.
3. These principles are sent to the Cabinet Committee on Legislation (CCL), a sub-committee of the cabinet tasked with overseeing legislative drafting. The CCL's function is to debate and approve the principles in light of the policy outlined by the full cabinet.
4. From the CCL, the principles are sent to the Attorney General’s office, where a draftsperson is appointed and assigned the task of drafting the legislation. The draftsperson must work in constant consultation with the relevant government department.
5. Once the department is satisfied with the draft, it sends a draft bill along with an accompanying memorandum to the CCL, which must scrutinize it in light of the principles and the policy articulated by the full cabinet.
6. After approval by the CCL, the bill may either be sent to the full cabinet, in the case of important or controversial bills, or to Parliament, if the CCL has been authorized to take that route.
Parliamentary stages of a bill in Zimbabwe
First reading
After a bill is gazetted (i.e., published in the Government Gazette, the official channel through which the government communicates its legal instruments), the responsible member gives notice in either of the two Houses of their intention to present a Bill. On the specified day, the motion for leave is moved and, if granted, the member brings a copy of the bill to the clerks at the table, who read the title of the bill. This act of bringing the copy to the clerks and the subsequent reading of the title is considered the first reading.
Reference to the Parliamentary Legal Committee (PLC)
The bill is then referred to the Parliamentary Legal Committee as per the Constitution and Standing Orders. This committee examines all bills and statutory instruments to determine whether, if enacted, the Bill would contravene the Declaration of Rights or any other provision of the Constitution. If the committee makes an adverse report (i.e., finds that the provisions of the bill contravene the Declaration of Rights and/or some Sections of the Constitution), it is referred to the National Assembly or the Senate, as appropriate.
Public hearings by the Parliamentary Portfolio Committee (PPC)
From the moment a bill is gazetted, it becomes open to the public, allowing citizens to voice their input and contribute to the shaping of the bill. The general public can review and submit comments, suggestions, and concerns to the Portfolio Committee overseeing the Bill. This committee also conducts hearings across the country's ten provinces to gather views directly from the people.
This process aligns with Section 141 of the Constitution, which mandates public access to and involvement in parliamentary processes that shape the country's laws. It states that Parliament must facilitate public involvement in its legislative and other processes, as well as in the processes of its committees. It should also ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable.
Second reading
The second reading stage is initiated by the sponsoring minister, who delivers a speech outlining the purpose of the bill and the principles upon which it is based. This is followed by a debate on these principles. Discussion on individual clauses is not permitted, although reference may be made to these clauses as part of the debate.
The Parliamentary Portfolio Committee presents its report containing its findings and recommendations from the public hearings, and the debate on the Bill commences.
The Bill is then read a second time. If any amendments are proposed to the Bill, the House may refer the Bill back to the Committee to prepare the necessary amendments for the Committee Stage in the Committee of the whole house.
Committee stage
The entire House forms a committee to consider the Bill in detail, clause by clause. The guiding principle is that the committee should make amendments to the Bill that are likely to make it more acceptable. However, the committee must ensure that it does not amend the Bill in a way that sharply conflicts with the Bill's principles. The committee will also consider the recommendations made by the relevant portfolio committee.
Report stage
This is a formal stage where the Chairman of the Committee of the Whole House reports the recommendations made to the Bill. These recommendations are either accepted or rejected, ensuring that the Bill represents the majority opinion of the House.
Third reading
At this stage, the bill is put to a vote for either approval or rejection. No actual reading takes place, and unless some members have given notice that they wish to do so, there is no debate.
Transmission to the other house
Once the bill has been passed by the house in which it originated, an authenticated copy of it is transmitted to the other house. The second house may reject the bill or pass it with or without amendments. If the second house passes the bill with amendments, it returns the bill to the house of origin.
Disagreements between the two houses
When a bill is transferred to another house as outlined above, disagreements may occur between both houses. Disagreements between the two houses are dealt with as provided for in Part 2, Paragraph 6 of Schedule 5. However, importance is given to the National Assembly:
IF
a. the Senate and the National Assembly have not agreed on amendments to a Bill which originated in the National Assembly within ninety days after the Bill was introduced into the Senate;
b. the Senate and the National Assembly have not agreed on amendments to a Bill which originated in the Senate within ninety days after the Bill was returned to the Senate; or
c. a Bill which originated in the National Assembly has been rejected or has not been passed by the Senate within ninety days after the Bill was introduced into the Senate;
the Bill may be presented to the President for assent and signature in the form in which it was passed by the National Assembly, except for minor changes required by the passage of time and any amendments on which the Senate and the National Assembly may have agreed.
Presidential assent
When a Bill has been duly passed in accordance with the provisions of the Constitution or the requirements of the Standing Orders, and signed by the Clerk of Parliament, it is then presented to the Head of State for assent within 21 days as per the Constitution.
The President grants his assent by authenticating a fair copy of the Act with his signature and attaching the public seal. If the President withholds his assent, he must return the Bill to Parliament with a list of concerns that should be addressed.
Conclusion
From the processes outlined herein, it is clear that the issue of motorists being required to purchase their radio licence before acquiring vehicle insurance is not yet a law. It is still in the legislative process and has not yet received presidential assent.
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