Think-tank raps Mthuli over use of SIs to set policy
LEGAL think-tank Veritas has accused Finance minister Mthuli Ncube of enacting laws through statutory instruments, which it says was a ploy by the minister to avoid parliamentary scrutiny.
In its latest Bill Watch report yesterday on Statutory Instrument (SI) 127 of 2021, Veritas said avoiding parliamentary scrutiny of regulations often resulted in bad laws.
SI 127 of 2021 was promulgated under the Presidential Powers (Temporary Measures) Act, which empowers the President to make regulations amending Acts of Parliament.
Such regulations expire after six months, by which time it is expected that Parliament will have enacted permanent legislation to replace the regulations.
SI 127 of 2021 amends the Exchange Control Act and the Bank Use Promotion Act, inserting a schedule in each Act containing heavy administrative penalties to be imposed for breaches of special provisions of the Act.
The SI has been viewed as an attempt to curtail the galloping exchange rate on the parallel market and stabilise the local currency, with business leaders saying its impact was akin to price control and could lead to shortages of goods.
“SI 127 of 2021 is yet another example of the Ministry of Finance’s fondness for legislating by statutory instrument, which is just one step away from legislating by decree. Important changes to the laws regulating our economy are published in the Gazette without warning and often without adequate thought about their long-term consequences,” Veritas said.
“By enacting the changes as SIs the minister avoids going to Parliament, where his proposals may be subjected to scrutiny, debate and criticism. The result, all too often, is bad law. SI 127 is certainly bad law, as we have shown — and we have not even considered its possible effects on the economy,” it said.
Efforts to get a comment from Ncube yesterday were fruitless.
But Veritas said the manner in which SIs have been promulgated in the country gave primary lawmaking powers to the President, in contravention of section 134 of the Constitution.
Section 134 of the Constitution deals with subsidiary legislation and states that 134(a), “Parliament’s primary law-making power must not be delegated”; 134(b) “Statutory Instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights.”
“The SI purports to amend two Acts of Parliament, something which at least one judgment of the High Court has held to be illegal. Also, the civil penalties are imposed without a court being involved at any stage.
“They arguably amount to a compulsory deprivation of property in breach of section 71 of the Constitution. Civil penalties (under SI 127 of 2021) are fixed and are enormous. There is no provision for smaller penalties to be imposed for less serious defaults.”