In Pursuit of Its Constitutional Mandate As Provided for in Section 40B of the Constitution

ADVERSE REPORT

OF THE

PARLIAMENTARY LEGAL COMMITTEE

MANGWE RURAL DISTRICT COUNCIL (SAND EXTRACTION) BY-LAWS,2013

In pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe. The Parliamentary Legal Committee met on the 16th of April 2013 at 1400hrs to consider Statutory Instruments that were gazetted during the month of March 2013. After deliberations the Committee resolved unanimously that an adverse report be issfaued in respect of Statutory Instrument 25 of 2013 due to the following considerations:

Statutory Instrument 25 of 2013- Mangwe Rural District Council (Sand Extraction) By-Laws, 2013 contains provisions that are ultra-vires section 18 of the bill of rights.

+546 The proposed section 8(2)(a) and (b) of the regulations provides that any person found guilty of an offence shall be liable to a fine stipulated by the Council and in the case of a continued offence the council shall review the fine. The giving of powers to the Council to stipulate a fine and to review it from time to time is an infringement of s18 of the Constitution which provides for the right to protection of the law. The right to protection of the law encompasses due process of the law . The due process of the law was interpreted by the courts to also include natural justice principles, such as the nemo judex rule. To the extent that the proposed section confers powers on the part of the Council to influence the sentence which a Judicial officer may impose on a person found guilty. This is a breach of the nemo judex rule. The council has too much discretionary powers to decide on fines payable, thereby making the law uncertain and encouraging arbitrary imposition of fines.

It should be noted that any law or proposed law should be consistent with the provisions of the constitution in terms of section 3 of the constitution. Where an Act of Parliament or any By-law is inconsistent with the provisions of the constitution it is null and void to the extent of the inconsistency.

Hon.S.L. Mushonga

CHAIRPERSON