Legal implications of laws that militate against the new Constitution Section 2 of Chapter 1 of the Constitution of Zimbabwe provides: This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency .
The Constitution is very clear. Put differently, any law that offends the supreme law is a nullity, it is outlawed at first instance.
Virginia Mabhiza, the permanent secretary in the Justice, Legal and Parliamentary affairs ministry was quoted in The Sunday Mail of February 23 as advocating for the general amendment route.
This approach aims at identifying all pieces of legislation that need sanitisation and dealing with the same in an omnibus fashion.
Chief Justice Godfrey Chidyausiku in dealing with Farai Madzimbamuto’s case implored the powers that be, to expeditiously deal with the sanitisation of laws that militate against the supreme law.
A critical point worth noting from Mabhiza and Justice Chidyausiku is their admission in a diplomatic manner though, that the harmonisation of offending laws is long overdue.
To be blunt, all laws that remain non-aligned to the Constitution are now a nullity. In my view the government needs to effect the general amendment of all unsanitised laws, then followed by the identification of the said outlawed pieces of legislation. Legally speaking, all unsanitised laws are now a nullity.
Madzimbamuto’s case is one of the many cases that have or will prove the nullity of all non-aligned laws. In fact the outlawed pieces of legislation were not supposed to see the daylight after the promulgamation of the supreme law.
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It is unbelievable, to hear the clerk of Parliament, Austin Zvoma suggesting that the harmonisation of these wayward laws is expected to take two or more years.
One would have expected him to properly advise parliamentarians in this regard. My suggestion is that the proposed general amendment should omnibusly cast all offending laws to the dust bin.
It is, however, heartening to note that the Justice, Legal and Parliamentary Affairs ministry has identified 400 laws as candidates for aligning. Out of the those laws 300 are to be dealt with through the general amendment route. The remaining 100, it is suggested are of a specialised nature, thereby needing more attention than others.
In my view the Parliamentary Committee on Legal Affairs is better place to study all the Acts and recommend the repealing or alignment of all wayward laws. The problem with leaving the identification and recommendation of laws that militate against the new Constitution to individual ministries lie in the selective nature and the desire to create little empires by ministries.
A good example being the Urban Councils Act Chapter 29:15. Each time the alignment discussion crops up the common Acts that come to mind are The Public Services Act and the Health Act to name a few. One rarely hears the mention of the Urban Councils Act. It would not be surprising that this act is not featuring within 400 identified laws.
I will now endeavour to bring forward the sections in the Urban Councils Act that need sanitisation.
- Section 7: The consultation aspect is in most cases ignored,
- Section 8: As in section 7,
- Section 80: is the most abused section, to be repealed,
- Section 114: Maybe a committee should be put in place rather than leaving everything to the Minister or alternatively repeal the section all together.
- Section 116: Local government
The section must be repealed as it has turned out to serve the minister’s interests only. For years Zimbabwe Urban Councils Workers’ Union has been denied representation at the local government board in contravention of Section 116 (2) and ( C) of the Urban Councils act.
Local authorities are capable of appointing senior staff without the assistance of the a Local Government Board whose staff calibre of late has been questionable . All sections dealing with the Local Government Board, 115 to 1130 need to be repealed.
- Section 123 to be repealed,
- Sections 124-129 to be repealed,
- Section 132 Councils appointments of senior officers not to be subjected to Local Government Board’s approval,
- Section 133 as in section 132,
- Section 134 as in section 132,
- Section 135 to be repealed,
- Section 138: There is no need for the minister to approve conditions of service for local authorities,
- Section 139 (2): Local Government Board approval not needed in discharging a town clerk,
- Section 140 (2): Local government approval not needed in discharging other senior employees,
- Section 141: to be harmonised into the Labour Act Chapter 28.01
- Section 146 to be repealed,
- Section 225: The initiative to partner with other local authorities should come from interested councils not the minister pretation of the provisions of this section.
A loud and clear chorus must be heard demanding the immediate nullification of all unsanitised pieces of legislation. “Justice delayed is Justice denied”. Please do come aboard!
Moses Tsimukeni Mahlangu is the general secretary for Zimbabwe Urban Councils Workers’ Union. He is a labour consultant and arbitrator. Feedback: Email: [email protected] Cell: 0775 547 120 or 0712 864 275
