Judge Pres­i­dent clears bond notes

Chronicle (Zimbabwe) - - Front Page - Harare Bu­reau

JUDGE Pres­i­dent Ge­orge Chi­weshe has dis­missed with costs an ap­pli­ca­tion by a Harare busi­ness­man chal­leng­ing the le­gal­ity of Statu­tory In­stru­ment 133/2016 that backed the re­lease of bond notes into cir­cu­la­tion.

Mr Fredrick Charles Mu­tanda also con­tested the con­sti­tu­tion­al­ity of the Pres­i­den­tial Pow­ers (Tem­po­rary Mea­sures) Act that was used in the pro­mul­ga­tion of the bond notes law.

Through his lawyers Mr David Drury and Ad­vo­cate Girach Firoz, Mr Mu­tanda ar­gued that the Pres­i­den­tial Pow­ers (Tem­po­rary Mea­sures) Act was un­con­sti­tu­tional in that it vi­o­lated Par­lia­ment’s pri­mary law-mak­ing role, thereby en­croach­ing onto the doc­trine of sep­a­ra­tion of pow­ers.

The lawyers ar­gued that the is­suance of le­gal ten­der in the form of bond notes and coins was un­law­ful as it fell out­side recog­nised le­gal ten­der and cur­ren­cies as pro­vided for by the RBZ Act.

Jus­tice Chi­weshe yes­ter­day handed down the judg­ment, dis­miss­ing the ap­pli­ca­tion af­ter the new notes and coins had al­ready hit the mar­ket.

The judge ruled that the mat­ter lacked ur­gency and that the con­cerns raised by Mr Mu­tanda were spec­u­la­tive.

“More im­por­tantly, the ap­pli­cants have not es­tab­lished, to the sat­is­fac­tion of the court that the in­tro­duc­tion of bond notes would cause them ir­repara­ble harm.

“The third and fourth re­spon­dents (RBZ and its Gov­er­nor Dr John Man­gudya) have clearly spelt out, as mon­e­tary au­thor­i­ties, the ob­jec­tives sought to be met by the in­tro­duc­tion of bond notes.

“The con­cerns of the ap­pli­cants are not based on any ob­jec­tive facts. What the ap­pli­cants fore­see as the in­evitable con­se­quence of the in­tro­duc­tion of bond notes is, to all in­tents and pur­poses, based on spec­u­la­tion.

“I am sat­is­fied that the re­quire­ments for ur­gency have not been met in this ap­pli­ca­tion and for that rea­son, the ap­pli­ca­tion can­not suc­ceed.

Ac­cord­ingly, it is or­dered that the ap­pli­ca­tion be and is hereby dis­missed with costs,” ruled the Judge Pres­i­dent.

Dur­ing the hear­ing, Adv Mpofu ar­gued that the bond notes were sup­ported by the RBZ Act hence their is­suance was law­ful.

He also slammed the ap­pli­cant for the man­ner he chal­lenged the Pres­i­den­tial Pow­ers.

“It is not pos­si­ble for a se­ri­ous lit­i­gant to chal­lenge the con­sti­tu­tion­al­ity of the whole Act. Is the ti­tle of the Pres­i­den­tial Pow­ers (Tem­po­rary Mea­sures) un­con­sti­tu­tional, is the short ti­tle un­con­sti­tu­tional. A se­ri­ous lit­i­gant will iden­tify the pro­vi­sions and jux­ta­pose them with the Con­sti­tu­tion,” said Adv Mpofu.

Adv Mpofu said pro­mul­ga­tion of a Statu­tory In­stru­ment did not con­sti­tute usurp­ing of Par­lia­ment’s pri­mary law­mak­ing process which, in any case was sub­ject to re­view by Par­lia­ment. Pres­i­den­tial Pow­ers, he said, had a life span of six months. Adv Mpofu submitted that by chal­leng­ing the is­suance of bond notes, the ap­pli­cant was ques­tion­ing the pol­i­cy­mak­ing role of the Ex­ec­u­tive.

He said is­sues like ex­port in­cen­tives and mea­sures aimed at curb­ing for­eign cur­rency leak­ages were pol­icy de­ci­sions which rested with the Ex­ec­u­tive.

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