Relaxation of Covid lockdown, Waiver of import restriction, Cancellation of carbon credit agreements: What about the rule of law?
The basis of the rule of law is: No one should be above the law. Everyone, including the government, should be ruled by the law and obey it.
There are further elements or sub-rules, all of which arise out of the basic rule. They include these:
The law must be accessible and so far as possible clear and predictable, so that people can find out what the law is.
Questions of legal rights and liabilities should normally be resolved by applying the law and not by the exercise of discretion by a Minister or public officer.
The law must protect fundamental human rights.
The law must generally take effect in the future, i.e. it should not be retrospective.
· Ministers and public officers have no inherent power to suspend laws or to exempt people from complying with them. In particular, they have no inherent power to waive the payment of taxes and duties.
Three recent government announcements have raised questions about how far the rule of law is understood, much less respected, in Zimbabwe. The first was the announcement by Cabinet that the remaining restrictions imposed during the Covid-19 pandemic had been lifted. The second was the announcement by the minister of Finance and Economic Development that import duties and restrictions on basic commodities had been waived for six months. The third was a declaration by Cabinet that all existing carbon credit agreements were null and void.
1. Relaxation of Covid restrictions
At its meeting on the 9th May, the Cabinet noted that the World Health Organisation had released a statement indicating that Covid-19 no longer constituted a public health emergency of international concern. Accordingly Cabinet issued the following directives: that the mandatory wearing of face masks be lifted, that all border measures to prevent the spread of Covid-19 be lifted with immediate effect, and
· that tourists should no longer be required to produce Covid-19 vaccination certificates at ports of entry or at tourist resorts around the country.
The Covid restrictions were imposed by regulations and orders made under the Public Health Act. The main order, the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) (No. 2) Order, 2020 has been amended 43 times and is now difficult to follow [thereby violating the first of the sub-rules of the rule of law that we listed earlier. Even so it is clear that the order still requires face masks to be worn: outdoors in public places, by people who have not been fully vaccinated indoors, at workplaces and in public places, by everyone, and by all passengers on public transport.
The order also obliges travellers to present a negative PCR test certificate on entry into Zimbabwe. Visitors who fail to do so must be denied entry and returning residents who fail to do so must be quarantined.
That is the law. A cabinet directive cannot change it because, as we have said, Ministers have no power to suspend laws or to exempt people from complying with them – unless the laws themselves give them that power. And in this case, the law doesn’t.
2. Relaxation of import restrictions
On the 11th May the Minister of Finance and Economic Development announced measures to boost the economy. One of the measures was:
“In order to enhance the supply of basic goods to the public, all basic goods will no longer be subject to import licences, and will also come into the country free of import duties and taxes.”
This was to last for six months. It was later announced that the basic goods covered by the measure were maize meal, rice, milk, flour, salt, cooking oil, petroleum jelly, toothpaste, bath soap and washing powder. The Permanent Secretary for Finance and Economic Development directed the Zimbabwe Revenue Authority to: “urgently draft the necessary legal instrument and implement the duty suspension with effect from 12 May 2023.”
He also said:
“Furthermore, the Ministry of Industry and Commerce is expected to complement the measure through the inclusion of the above goods on the Open General Import Licence.”
Both the Minister’s announcement and the Permanent Secretary’s statement show a complete disregard for the rule of law.
Customs duties are imposed by regulations and notices under the Customs and Excise Act, and they cannot be lifted or altered except by formal amendments to those regulations and notices – and moreover the amendments have to be confirmed by an Acq [section 225 of the Act].
Regulations under the Control of Goods Act require import licences to be obtained before most goods can be imported, except the goods listed in the Control of Goods (Open General Import Licence) (No. 2) Notice of 1996 [A notice which was purportedly repealed in 2017 but has been amended several times since then. The confusion and uncertainty this has created violates the important sub-rule of the rule of law which we mentioned earlier, that laws must be clear]. One thing is clear, however: the Minister of Finance has no power to alter the licensing requirements through press statements or even statements in Parliament.
Not until eight days after the Minister’s announcement were regulations issued under the Customs and Excise Act suspending duties on the basic goods concerned. The suspensions were retrospective, violating yet another sub-rule of the rule of law. The Open General Import Licence has not yet been amended.
Cancellation of carbon credit agreements
The press briefing document issued after last week’s cabinet meeting contains another example of disregard for the rule of law. It outlines plans presented by the Minister of Finance for a Carbon Credit Framework for Zimbabwe, which includes setting up a National Carbon Credit Registry and a National Climate Change Fund and regulating carbon credit agreements. The press briefing contains the following rather disturbing passage:
“No entity, including Local Authorities, is allowed to enter into Carbon Credit Agreements with international agencies or organisations without the approval of Government. Accordingly, all such previous agreements entered into are hereby declared null and void.”
Ministers have no power to declare agreements concluded by non-government entities to be null and void, and they have no right to cancel government contracts except on recognised legal grounds such as breach of contract. Section 3(2)(k) of the Constitution states that respect for vested rights – which include contractual rights – is one of the elements of good governance, a fundamental constitutional value.
Consequences of disregard for the Rule of Law
The first two governmental actions we have dealt with in the bulletin are legal nullities because they were not done properly according to the law; the third is legally meaningless because the cabinet has no power to nullify contracts. Such actions are not without precedent in Zimbabwe, unfortunately. What is remarkable about these three is the blithe disregard for the rule of law with which they were carried out, the implicit assumption that Ministers can change the law by decree or public announcement. The Secretary for Finance, for example, called on the Ministry of Industry and Commerce to “complement” his Minister’s measures by amending the Open General Import Licence. He did not seem to understand that his Minister’s measures could have no legal effect until the Open General Import Licence was amended. Compliance with the law was an afterthought apparently, a tidying-up exercise to be done at some future time rather than an essential step that should have been completed before or at the same time as the Minister made his announcement.
Respect for contracts is important for economic development. Foreign investors will not risk putting their money into Zimbabwe unless they are reasonably confident that their contracts will be respected by the Government and enforced by our courts. Local businesspeople will not risk expanding their businesses and developing their assets if they fear a Minister will issue a decree nullifying their rights. The mantra “Zimbabwe is open for business” becomes meaningless if contractual rights are not respected
The rule of law is essential to good governance and economic progress. Zimbabwe cannot be a law-based society until Ministers and all public officers recognise that they are all subject to the law and act accordingly.
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