Parly outlaws councils’ exorbitant fines The committee, chaired by Hwedza South MP, Cde Itayi Ndudzo (Zanu PF), felt that the by-laws conferred the local authorities with wide discretionary powers to impose fines on offences, instead of making the legal instruments clear and specific in respect of given offences.

Zvamaida Murwira-Senior Reporter

AT least 12 Statutory Instruments gazetted in February and March by several local authorities this year, containing by-laws, face nullification after the Parliamentary Legal Committee issued an adverse report against them, saying they were not consistent with the Constitution.

The committee, chaired by Hwedza South MP, Cde Itayi Ndudzo (Zanu PF), felt that the by-laws conferred the local authorities with wide discretionary powers to impose fines on offences, instead of making the legal instruments clear and specific in respect of given offences.

PLC is an arm of Parliament that scrutinises Bills from Government ministries and Statutory Instruments, to establish if they are consistent with the Constitution.

The adverse report was tabled in the National Assembly and now awaits debate by legislators and if it is adopted, the 12 Statutory Instruments will be deemed null and void and of no legal force and effect.

Alternatively, the responsible ministry, under which the Statutory Instruments were gazetted, can withdraw them and address issues raised.

In tabling the report, Cde Ndudzo said they unanimously resolved that an adverse report be issued in respect of the 12 Statutory Instruments.

“The Statutory Instruments give wide discretionary powers to the local authorities; this is so as the by-laws permit them to impose unspecified fines to persons that the local authorities determine have violated by-laws regulating their jurisdiction. The committee observed that the aforementioned Statutory Instruments created offences that gave local authorities full discretion to determine the penalty,” said Cde Ndudzo.

“It is the opinion of the committee that legislation must be explicit, principally when it comes to the punitive measure to be imposed, when it comes to an offence. These by-laws must state the maximum level fine to be applied to offenders, in terms of their principal legislation. If the intention is to issue a spot fine, such spot fine must not exceed level 3.”

The committee noted that a Statutory Instrument is a delegated power conferred by Parliament to the Executive branch of Government, and the exercise of such powers must be clear and should never be inferred.

“Finally, the committee opined that no Statutory Instrument can impose criminal or civil liability upon a person, unless the imposition and the extent of the imposition is specifically authorised by the enabling Act. Therefore, the by-laws contravene their enabling legislation, and were accordingly found ultra vires their enabling Act by the committee.”

The affected local authorities include Mwenezi Rural District Council, Gwanda Town Council, Murehwa Rural District Council, Marondera Municipality, Nkayi Rural District Council and Mhondoro-Ngezi, with some councils gazetting two Statutory Instruments.

The committee noted that local authorities were not fixing fines or the scale of fines but were arrogating themselves the discretion to determine the level of fine.

For example, a Statutory Instrument by Mwenezi Rural District Council read as follows: “Any person or inhabitant, who grazes livestock in an undesignated area for grazing in terms of a Plan, shall be guilty of an offence and liable to a fine prescribed by council or, if it is the first time, council may consider giving the person a written warning and, upon commission of a similar offence, a fine will be imposed.”

Commenting on the Adverse report, Dzivarasekwa MP, Mr Edwin Mushoriwa, commended the PLC saying there was a need for those practising delegated power to do so consistent with the legislation that created such powers.

“There is actually a disconnect in respect to the national policy and sometimes the Local Government policies whereas we are supposed to have the Ministry of Local Government carrying its mandate in terms of making sure that the lower tiers are in sync and in line with the legislation that is in existence,” he said.

“The reason why I also applaud the committee is that all ministries, I speak for Local Government in this case — they actually have a legal department.  That legal department in my view is either sleeping on duty or turning a blind eye in terms of its role in making sure that they scrutinise some of these by-laws and Statutory Instruments that are initiated by the lower structures.”

Parliamentary legal watchdog, Veritas, said it concurred with the observations of the PLC.

“The point made by the PLC — entirely correctly, in Veritas’ respectful opinion — is that the by-laws identified in the report contain ultra vires penalty provisions, because the amount of the fine is not in the by-laws; instead there is a vague reference to “a fine specified by the council”, when it should have stated a “fine not exceeding level 5” or some other level on the standard scale of fines,” said Veritas in its weekly bulletin.

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