BILL WATCH 37/2018
[9th November 2018]
Update on Statutory Instruments January to August 2018: Part 1
This bulletin is Part I of a series aimed at providing basic information about the approximately 170 statutory instruments [SIs] gazetted during the period January to end of August 2018. The statutory instruments dealt with in this bulletin are grouped by subject-matter under the following headings:
Assignment of Administration of Acts [with an updating note]; Civil Aviation Regulations; Defence Forces; Drugs, Medicines and Allied Substances; Electricity; Higher and Tertiary Education; National Biotechnology Authority.
The statutory instruments with links in blue underlined font, are available on the Veritas website.
A numerical and chronological list [table] of all 2018 statutory instruments until the end of September is also available on the Veritas website [link]. Like any other table in MS Word, its contents can be not only searched, but also sorted alphabetically so as to group together all statutory instruments made in terms of a particular Act of Parliament. The table includes dates of gazetting.
Assignment of Administration of Acts
It is important for the public to know which Minister is responsible for the administration of every Act of Parliament. Almost every Act confers functions on a “Minister”, usually – but not invariably – defined as “the Minister of … or any other Minister to whom the President may from time to time assign the administration of this Act”.
The President assigns responsibility for administering Acts to Ministers in terms of sections 104 of the Constitution and to Vice-Presidents in terms of section 99. Section 104 also authorises the President to retain for himself the administration of any Act. His discretion to retain responsibilities for himself or assign them to Vice-Presidents is, however, restricted by sections of the Constitution which require him to appoint Ministers to be responsible for particular State institutions: the Civil Service [section 201]; the Defence Forces [section 215]; the Police Service [section 220]; the national intelligence service [section 225]; and the Prisons and Correctional Service [section 228].
Statutory Instruments notifying assignments
Assignments of administration of Acts are customarily notified by statutory instruments published in the Government Gazette, although this is not expressly required by the Constitution. After Mr Mnangagwa’s assumption of the Presidency in November last year, there was a delay of six months before the gazetting of the assignments necessitated by his Cabinet changes; they finally appeared in a Government Gazette dated 15th June 2018 as Statutory Instruments 94 to 118/2018, which are available on the Veritas website [link].
NOTE ON OCTOBER ASSIGNMENTS
The June statutory instruments listed above have since been replaced following President Mnangagwa’s post-election Cabinet changes, which reduced the number of Ministries and changed the names of some – see Bill Watch 23/2018 on Ministerial Appointments [link]. The new statutory instruments were gazetted on 19th October in a special Government Gazette Extraordinary as SIs 212 to 234/2018 [link].
Civil Aviation Regulations
This year has seen a steady stream of regulations made by the Minister of Transport and Infrastructural Development under the Civil Aviation Act, some of them extremely lengthy. Where appropriate, the regulations replace previous regulations that needed updating. They are listed below in numerical order [for each SI the full name commences with the words “Civil Aviation”]:
SI 48/2018 – Balloon and Parachute Operations Regulations [gazetted 6th April]
SI 51/2018 – Dangerous Goods Regulations [gazetted 13th April]
SI 53/2018 – Registration Development Committee Regulations [gazetted 20th April]
SI 58/2018 – Aircraft Nationality and Registration Marks Regulations [gazetted 20th April]
SI 64/2018 – Airworthiness Regulations [gazetted 27th April]
SI 69/2018 – Aerial Work Regulations ([gazetted 4th May], replacing SI 47/2017
SI 77/2018 – Approved Maintenance Organisation Regulations [gazetted 11th May]
SI 78/2018 – Accident and Incident Investigations Regulations [gazetted 18th May]
SI 80/2018 – Approved Training Organisation Regulations [gazetted 25th May] (corrected by SI 130/2018)
SI 87/2018 – Air Operator Certification and Administration Regulations [gazetted 8th June]
SI 121/2018 – Aircraft Operations Regulations [gazetted 22nd June]
SI 130/2018 – Approved Training Organisation Regulations (correction of error in SI 80/2018) [gazetted 6th July]
SI 139/2018 – Instruments and Equipment Regulations [gazetted 27th July]
[None of these regulations are on the Veritas website as they are specialised and some of them are very bulky. Hard copies can be obtained from the Government Printer [Printflow (Pvt) Ltd]. There are Printflow Publications Offices in Harare, Bulawayo, Mutare, Masvingo and Gweru.]
SI 145/2018 – Cantonments Notice, 2018 [link] [gazetted 3rd August]
This notice, by the former Minister of Defence and War Veterans Affairs [Vice-President Retired General Chiwenga doubling as a Minister], declared the area of Darwendale North Farm a cantonment for the purposes of section 89 of the Defence Act. The notice was gazetted and took effect on 3rd August, meaning that access to the area by anyone other than Defence Force personnel would require special authorisation from the officer in command of the cantonment.
[Note: This notice is the subject of a court case brought by the holder of mining claims in the cantonment, now allegedly being mined by companies associated with the Defence Forces – see Bill Watch 30/2018 [link] for further details.]
SI 146/2018 – Regular Force (Specialist Members) (Amendment) Regulations, 2018 (No. 2) [link] [gazetted 3rd August]
These regulations add a badly-worded new section 5 to the principal regulations [SI 92/1979]:
“5. A member who is a specialist and has continued to serve [sic] shall retire on attaining the age of sixty years:
Provided that, if the President considers that it is desirable in the public interest, he or she may allow that the member who is a specialist to continue to serve for another five years [sic] until he or she attains the age of seventy [sic] years."
As 60 + another 5 years takes one to age 65, not 70, the whole proviso leaves one uncertain as to its meaning. Is 70 a mistake for 65? If not and 70 is correct, was the intention that a specialist member may be granted two 5-year extensions, although the proviso allows only one? Regulations that call for this sort of speculation fall short of the standard of clarity that is essential for a valid law. A curious and overbroad definition of “specialist member” is also provided – any Defence Forces member “who holds any professional or other qualification the Commander may deem to be necessary” – which purports to gives the Commander an unlimited discretion to treat any member as a specialist member. Approval of this SI by the Parliamentary Legal Committee would be extremely surprising; an adverse report is called for.
Yet another point against the SI is that it should have been made by the Defence Forces Service Commission, not by the Minister [Constitution, section 210(1)(b) as read with (2)]; the same applies to all other regulations made since August 2013 for Defence Force conditions of service – perhaps because the relevant enabling provision of the Defence Act has not been properly aligned to the Constitution more than five years on.
Drugs, Medicines and Allied Substances
SI 62/2018 – Dangerous Drugs (Production of Cannabis for Medicinal and Scientific Use) Regulations [link] [gazetted 27th April]
This is a set of regulations, made by the Minister of Health and Child Care under the Dangerous Drugs Act, providing for the production, under very tight official controls and on payment of a hefty licence fee, of cannabis (dagga) for medicinal and scientific purposes.
[Note: The SI decidedly does not give the go-ahead signal for private personal cultivation and use of dagga.]
SI 178/2018 [link] [gazetted14th September] – amends SI 62 above to specify RG Mugabe International Airport, Harare, as the only port of entry/exit for import/export of lawful shipments of cannabis. It also clarifies the fees payable for a licence application and thereafter the issue of a licence.
SI 85/2018 – Electricity (Customer Supplied Prepayment Meter Scheme) Regulations [gazetted 1st June]
SI 86/2018 – Electricity (Net Metering) Regulations [gazetted 1st June]
Higher and Tertiary Education
The Minister of Higher Education was referring to the first three of the following regulations when he told the Senate on 27th September: “We have worked on the Zimbabwe National Qualifications Framework. This qualifications framework is a framework which recognises that there are professional training of artisans, higher education of universities, tertiary and vocational education for polytechnics and vocational colleges. These three systems were not interlinked at all but with the National Qualification Framework, we have looked at equivalents. For example, if you have got professional level 2, we say that is equivalent to a diploma at universities and therefore that person is allowed to cross and go into the university route or go to any route. We have done this to make our higher and tertiary education responsive to those who want to learn without putting barriers.”
SI 137/2018 – Manpower Planning and Development (National Qualifications Framework) Regulations [gazetted 20th July]
SI 132/2018 – Zimbabwe Schools Examinations Council (National Qualifications Framework) Regulations [gazetted 20th July]
SI 133/2018 – Zimbabwe Council for Higher Education (National Qualifications Framework) Regulations [gazetted 20th July]
SI 140/2018 – Manpower Planning and Development (Quality Assurance and Standards) Regulations [gazetted 27th July]
National Biotechnology Authority
The following regulations were made by the Minister of Higher and Tertiary Education in terms of the National Biotechnology Act:
SI 157/2018 – National Biotechnology (Food, Feed, Food and Feed Additives and Seed) (Import, Export and Transit) Regulations [gazetted 24th August]
SI 159/2018 – National Biotechnology (Genetically Modified Food and Feed) (Labelling) Regulations [gazetted 24th August]
SI 160/2018 – National Biotechnology (Agricultural Biotechnology Products) Regulations [gazetted 31st August]