BILL WATCH 54/2022
[15th November 2022]
The Copper Control Amendment Act – Variations on a Theme by Parliament
The Copper Control Amendment Act was published in the Gazette last Friday and can be accessed on the Veritas website [link]. The Bill for the Act was gazetted in June 2021 and was presented in the National Assembly three months later. It too can be accessed on the Veritas website [link].
During the Bill’s long passage through Parliament neither House resolved to amend the Bill in any respect, but despite this there are important differences between the Bill that was passed by Parliament and the Act that was published last Friday.
Section 2 of the Act
Section 2 inserts a definition of “putative dealer” in the Act. The equivalent clause of the Bill proposed to insert two additional definitions, of “police district” and “utilities”, but inexplicably they have been dropped from the Act. The definition of “putative dealer” has also been changed. In the Bill it read as follows:
“putative dealer” means a person who is presumed (in the absence of evidence to the contrary) to be in possession of copper for the purpose of dealing in it”
The definition in the Act reads:
“putative dealer” means a person who is presumed to be in possession of copper for a consideration”
The definition in the Bill was not a good one – we criticised it in our Bill Watch 48/2021 of the 6th July 2021 [link] – but the new one is no better. In fact it is worse, because the idea of someone possessing copper or anything else “for a consideration” is legally meaningless.
However it does not matter whether the new definition is better or worse than the one in the Bill: the point is that Parliament did not pass or even consider the definition that is now in the Act. Nor did Parliament resolve to drop the definitions of “police district” and “utilities”.
This section inserts a new section 4A in the Act which makes it an offence for a dealer or putative dealer to possess copper without holding a certificate of origin. The certificate must contain “an endorsement by the police [presumably a police officer]”. The Bill was more elaborate: it required a certificate or origin to contain:
“a written endorsement by or on behalf of the police officer in command of a police district that the copper is lawfully sold and purchased”.
Not only was this more detailed than what is now in the Act, it was also clearer. But again the point is that Parliament did not resolve to make the change.
The same section 4A contains another change. In subsection (3) it states that “Any person who unlawfully or intentionally deals in or possesses copper without a certificate of origin” is guilty of an offence and liable to at least 10 years in prison. The offence is committed by anyone who deals in or possesses uncertificated copper, so long as they act “unlawfully or intentionally” [which incidentally is an inept phrase since it implies that the offence may be committed by an intentional act even though the act is lawful]. The equivalent provision in the Bill was different. It stated that “Any person who contravenes subsection (1)” would be guilty of the offence, and subsection (1) applied only to dealers and putative dealers. So under the Bill only dealers and putative dealers would have been guilty of an offence if they dealt in or possessed uncertificated copper, whereas under the Act anyone at all is guilty of the offence. That is a material change, and it was not authorised by Parliament.
This section inserts two new sections 10A and 10B in the Act, the one penalising the theft of copper and the other penalising dealing in stolen copper. Both sections prescribe mandatory minimum prison sentences for the offences.
Again there are material differences between the Act and the Bill. In the Bill the new section 10A made it an offence for a person to collude with another in the theft of copper cables, if he or she knew or ought to have known or suspected that the cables were stolen. In the Act on the other hand, such collusion is an offence if the person knew or ought to have known or suspected “that there are copper cables”. The new offence is less clear than the old, and much wider.
In the Bill both sections 10A and 10B had subsections providing for alternative penalties in the event that courts were to find special circumstances for not imposing mandatory prison sentences. These subsections have been dropped from the Bill – which leaves unstated the penalty a court may impose if it finds special circumstances.
Were These Changes Lawful?
Generally once a Bill has been printed or published in the Gazette it cannot be amended or altered unless the National Assembly or the Senate resolves to make the amendment. This rule is reflected in Standing Orders 155 and 156 of the National Assembly’s Standing Orders:
“155.(1) During the progress of a Bill, corrections of a verbal or formal nature (i.e. spelling or obvious grammatical mistakes, typographical errors or the renumbering of clauses or paragraphs and minor amendments in consequence) may at any time be made in a Bill by the Clerk under the direction of the Speaker or the Chairperson.
(2) Corrections other than those provided for in suborder (1) must be made by way of motion and dealt with as any other amendment.
“156. On discovery of an error, other than an error referred to in Standing Order No. 155 (5), in any Bill after it has been passed by the House but before it has been presented to the President for assent the Speaker must report such error to the House; and the Bill must thereafter be recommitted and the error must be dealt with as any other amendment.”
SOs 146 and 147 of the Senate’s Standing Orders are substantially the same.
The reason for the rule is obvious. Parliament is the supreme law-maker in Zimbabwe and its laws, in the form of Acts of Parliament, must express what its members have decided upon in accordance with proper parliamentary procedures. Hence, except to the minor extent laid down in Standing Orders, no one outside Parliament, and no member of the staff of Parliament, is permitted to alter or amend Bills after they have been passed by Parliament and before they are sent to the President for signing and assent.
Unlawfulness of the changes
The changes that were made to the Copper Control Amendment Bill, as revealed by the differences between the Bill and the Act, go far beyond what is permitted by Standing Orders. They are substantial, and one of them – the change to section 4A(3) – even extends the scope of the Act.
Clearly the changes are unlawful.
How Were the Changes Made?
The changes must have been made to the Bill between its final reading in the Senate and the time it was sent to the President for assent.
After a Bill has been passed by the National Assembly and the Senate, the staff of Parliament are responsible for getting it reprinted as an Act by the Government Printer (Printflow). The printer’s proofs are checked and corrected by drafters in the Attorney-General’s Office, and they should also be checked by officers of the staff of Parliament. When copies of the Act have been printed, the Clerk of Parliament sends them to the President’s Office for presidential assent and signature. After the President has signed the Act it is sent to the Government Printer for publication in the Gazette.
It seems probable that someone on the staff of Parliament or in the Attorney-General’s Office tried to “improve” the Bill before it was reprinted as an Act, by making alterations on the printer’s proofs beyond what is permitted by Standing Orders. Those alterations did not improve the Bill; instead they made what was a rather poor piece of legislation much worse.
Invalidity of the Act
The alterations also rendered the Act null and void. According to section 131(2) of the Constitution, an Act of Parliament is a Bill which has been passed by both Houses of Parliament and has been assented to and signed by the President. The document that was published in the Gazette as the Copper Control Amendment Act is not the same as the Bill that was passed by Parliament, so it is not an Act as defined in section 131(2) of the Constitution.
What Can be Done?
The only remedy is for Parliament to have the Bill reprinted as an Act, this time with unaltered provisions, and resubmitted to the President for assent and signature. The new Act should be published in the Gazette, perhaps with a notice indicating that the earlier “Act” was published in error.
Parliament should also investigate how and why the Copper Control Amendment Bill came to be altered in the way it was, and procedures should be developed to ensure that the same thing does not happen again.