President Invokes “Prerogative Powers” to Transform National Defence College into a University

In a Presidential proclamation published in the Government Gazette of 3rd March President Mugabe invoked “the common law relating to the prerogative powers of the President”, in particular such prerogative powers “in the sphere of defence and national security”, to establish the Zimbabwe National Defence University and grant it a Charter set out in the proclamation.

The Charter broadly follows the form used for the Charters of private universities established under the Zimbabwe Council for Higher Education Act, with modifications necessitated by the new University’s close association with the Defence Forces; for example, the new University is successor to the National Defence College and its chief academic and administrative officer is the “Vice-Chancellor and Commandant”.

The statutory instrument containing the proclamation, including the full text of the University Charter, is SI 38/2017, which is available using this link to the Veritas website.

Comments

  1. The proclamation takes the place of the vanished Zimbabwe National Defence University Bill.  At last we know why the Government, having let that Bill lapse at the end of the last Parliamentary session, has not revived it since – despite the Bill’s having gone through both Houses of Parliament and being ready for the President’s assent, until being recommitted for further amendment.  The Bill had reached such an advanced stage that it had even been allocated its annual number as Act No. 1 of 2016.  Now the list of Acts of 2016 will forever start with Act No. 2.
  2. This use of prerogative powers is a novel development, without precedent since Independence.  A pre-Independence precedent of sorts is the establishment by royal Charter of the University College of Rhodesia and Nyasaland [the predecessor of the present, statutory, University of Zimbabwe.  But that happened in the early 1950s against an entirely different constitutional background.  Whether the present Constitution, with its emphasis on the rule of law, permits the existence of so slippery a concept as “prerogative powers vested in the President”, is a question for a separate bulletin. 
  3. There will inevitably be speculation as to what else the President and his advisers will think it appropriate to do under “the common law relating to the prerogative powers of the President”.   What are the limits of those powers?

In the National Assembly Last Week

Bills

There was some progress on the following two Bills but neither was finalised, so the week came to an end without any Bills being passed and sent to the Senate.

  • Procurement and Disposal of Assets Bill The Minister of Finance and Economic Development took the Bill through its Committee Stage on 2nd March, securing the House’s approval of an amendment to clause 2 [insertion of a definition of “corruption”], the replacement of clause 29 [Domestic preference] and the tidying-up of an outdated reference to the Prevention of Corruption Act in clause 99.  From the Opposition benches Hon Misihairabwi-Mushonga and Hon Cross applauded the Minister for listening to the voice of the House.  Hon Cross also commended the Bill as excellent major legislation. The amendments were immediately referred to the Parliamentary Legal Committee [PLC] for vetting against the Constitution.  Passage of the Bill will have to wait until the PLC reports back to the House  Only thereafter can it go to the Senate.
  • ZEPRE (Membership of Zimbabwe and Branch Office Agreement) Bill The Bill received its Second Reading on 2nd March.  Next is the Committee Stage, due on 14th March.

For the second week running there was no further progress on the National Competitiveness Commission Bill.   So the House still awaits the Minister of Commerce and Industry’s reply to the Second Reading debate.  When the Bill was last debated on 16th February, the need for it was seriously questioned, not only by Opposition MPs but also by the report of the Portfolio Committee on Industry and Commerce.  Opposition MPs demanded that the Bill be withdrawn.

SONA debate

Hon Simbanegavi, seconded by Hon Mlilo, moved a vote of thanks to the President for his State of the Nation Address [SONA] of early December.  Most of the afternoon of Tuesday 28th February was taken up by ensuing contributions from MPs.

Another no-quorum adjournment during debate on Xenophobic Attacks on Zimbabweans in South Africa

On 1st March, after Question Time, Hon Maridadi of MDC-T made a passionate and eloquent speech when presenting his urgent motion on xenophobic attacks in South Africa, ably seconded by Hon Nduna of ZANU-PF.   A thoughtful contribution from MDC-T’s Hon P.D. Sibanda, focussing on the problem posed to South Africa by the presence of an abnormal number of economic refugees from Zimbabwe, was cut short by a sudden automatic adjournment when just after 6 pm a quorum could not be raised.  [When heads were counted only 28 MPs remained in the Chamber – 42 short of the quorum of 70, even though 206 MPs had been recorded as present earlier in the afternoon.] 

Ministerial Statement: Declaration of State of Disaster in Flood Affected Areas

The Minister of Local Government, Public Works and National Housing presented this Ministerial Statement to the National Assembly on 2nd March; it is available using this link.  This was followed by a number of questions from MPs and a lengthy response from the Minister.

Coming up in the Senate This Week

Bill

Land Commission Bill   This is the only Bill listed, for its Committee Stage. [It was passed with several amendments by the National Assembly on 26th January and has already had its Second Reading in the Senate.  A copy of the Bill annotated to show these amendments is available here.  As they said they would during the Second Reading debate, Senator Chiefs will be putting forward amendments during the Committee Stage to give chiefs a greater part in the work of the Commission; these new amendments are available here.

Other business

Debates on motions already moved will continue – including those on SONA, the President’s speech opening the present Session, the National Schools Pledge, reform of the Zimbabwe Electoral Commission and the call for large families.

Government Gazette 3rd March 2017

Statutory Instruments

Collective bargaining agreements  Three collective bargaining agreements were gazetted: (1) for the Battery Manufacturing Industry [SI 33/2017] and (2) the Plastics Manufacturing Industry [SI 34/2017].  In both these, there is clarification about when contracts of fixed duration become contracts without limit of time]; and (3) for the Tourism Industry [SI 35/2017] stating new rules agreed on for housing allowances, basic pay and minimum wages for the period 1st June 2016 to 28th February 2017.

Harare Licensed Premises Amendment By-laws  [SI 36/2017] makes important amendments to the main Licensed Premises By-laws of 1975, which have been amended on two previous occasions since 1975.  This prompts the comment that it would have been far more helpful for all concerned – whether councillors, council officials, businesses needing to be licensed, their legal advisers, and ordinary members of the public – to re-enact the by-laws as a whole.  That way at least the complete by-laws would be available in one up-to-date document.  What the current amendment does can be summed up as follows:

  • Part I of the main by-laws is repealed and  a new Part I substituted.  This re-states provisions for licensing periods [maximum one year and universal expiry on 31st December of year of issue], and for issue, refusal and cancellation of licences.  Transfer of any licence is prohibited.
  • A brand-new and complicated Part XI requires the licensing of “ice-cream mobile take away” and “mobile food take away” businesses and regulates when, where and how they must be conducted. It also totally bans such mobile take-aways in the Central Business Districts and within 100 metres of licensed premises.  The Council is not targeting the traditional ice-cream vendor pushing his cart or riding his bicycle-cart along suburban streets selling pre-packed ice-cream in tubs or wrappers; the SI is aiming at wheeled vehicles where ice-cream is dispensed through a dispensing machine.  Similarly, as far as other food is concerned, the by-laws aim at wheeled vehicles where food is prepared, cooked and sold for human consumption.  The SI also gives a limited list  of foodstuffs that may be sold.  All mobile take-aways must be towed away at the of each working day, and the Clamping and Tow-away By-laws will be applied to those that are not.
  • A brand-new Part XII empowers any authorised council official who has reason to believe that any provisions of the by-laws have been violated, to confiscate goods connected to the offence and remove them to a secure compound from which the owner may claim them on payment of a prescribed penalty and the Council’s storage charges.  [There is a constitutional problem here, because the by-laws envisage the imposition of the penalty by a Council official, not a court.  A similar provision in Plumtree Clamping and Tow-away By-laws last year attracted an adverse report from the Parliamentary Legal Committee that is yet to be resolved.] The Council must publish in a newspaper a notice listing unclaimed goods advising owners to claim within 30 days, and may thereafter sell goods not so claimed, with the proceeds being forfeited to the Council if unclaimed after a further 30 days.

A brand-new Part XII providing for a long list of offences and penalties, for any contravention or failure to comply with the by-laws [meaning not only the new provisions enacted by this SI, but also the older provisions].  The Director of Health Services [who is the Council’s licensing authority] is obliged to cancel a licence if the holder is, to quote the inept wording of section 17(3) in this SI, “penalised of” any contravention of the by-laws. A copy of these By-laws is available here.

Harare (Meat) By-laws [SI 37/2017] These by-laws completely replace the previous by-laws of 1976, which are repealed.  They apply to the entire municipal area.  The only meat from a domestic animal that may be kept and supplied in a butcher’s shop or food premises or from a vehicle is meat from a carcass that has been inspected, graded and marked by a State grader and passed as being free from disease and fit for human consumption.  Fresh meat must have been obtained from livestock slaughtered in an abattoir approved by Council.  Game meat may not be sold unless supplied by a person registered with the Council in terms of other provisions of the by-laws and also inspected and marked by a Council health inspector.  Meat not complying with the by-laws may be seized by a council health inspector and destroyed.  The SI also makes provision for a council health inspector to impose fines for breaches of the by-laws.  Note:  this may be subject to the same constitutional objection as in SI 36 Part XII [see above].   There are also careless mistakes; for example, “consumption” where “destruction” is clearly intended in a reference to disposal of condemned game meat. A copy of these By-laws is available here.

Charter of Zimbabwe National Defence University  This is in SI 38/2017, noted earlier in this bulletin.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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