BILL WATCH 58/2022
[4th December 2022]
Institute of Chartered Loss Control and Private Security Managers Bill
In May this year the National Assembly gave a private Member, Hon Murire, leave to introduce this Bill as a private member’s Bill. It was gazetted on the 6th June, received a non-adverse report from the Parliamentary Legal Committee on the 14th June and before the end of the last parliamentary session on the 22nd November was awaiting debate in its Second Reading in the Assembly. It lapsed when the parliamentary session ended and if it is to be proceeded with the Assembly will have to resolve to revive it. It can be accessed on the Veritas website [link].
Hon Murire gave notice that he intends to move extensive and far-reaching amendments to the Bill when it reaches its committee stage. These amendments will give the Institute which is to be set up by the Bill power to control not just its own members but everyone else who practises as a loss control or private security manager. We shall deal later with the question whether such amendments can or should be made to the Bill.
Private Bill or Private Member’s Bill?
Hon Murire sought and received leave from the House to introduce the Bill as a private member’s Bill, but in its current form – i.e. without the proposed amendments – it is really a private Bill.
A private member’s Bill is a Bill which is introduced by a private Member of Parliament, i.e. a member who is not a Vice-President, Minister or Deputy Minister. It can deal with all sorts of public issues – family law, contracts, control of animals, anything in fact that a government Bill can deal with – but it cannot impose or alter taxes or impose financial obligations on the State.
A private Bill is also a Bill introduced by a private Member of Parliament, but it does not deal with public matters. To quote Parliament’s standing orders, it is a Bill:
“for the particular interest or benefit of any person or persons or bodies of persons as distinguished from a measure in the general public interest”.
Put differently, it is a Bill which, if enacted into law, will confer rights, powers or benefits on a particular person or body which are greater than those conferred by the general law.
Hon Murire’s Bill seeks to confer rights, powers and benefits on the Institute of Chartered Loss Control and Private Security Managers, and in its current form it will not affect anyone else. No one will be obliged to join the Institute and no one will suffer any disadvantage if they do not join it. Hence, unless the Bill is amended on the lines proposed by Hon Murire, it is really a private Bill like the Bills which resulted in the Chartered Secretaries (Private) Act and the Zimbabwe Institution of Engineers (Private) Act.
Be that as it may, the National Assembly has given leave for the Bill to be introduced as a private member’s Bill and by doing so has implicitly waived its Standing Orders relating to private Bills – which it is entitled to do. Whether leave should or should not have been given is now irrelevant because the Bill has begun its passage through Parliament and, if it is amended along the lines proposed by Hon Murire it will become a public Bill because his Institute will be given control over persons other than its members.
Outline of the Bill
The Institute and its Members
The main object of the Bill, set out in clauses 4, 5 and 6, is to establish the Institute of Chartered Loss Control and Private Security Managers as a corporate body with responsibility for setting and enforcing professional standards and codes of conduct for its members.
Who will its members be? That is not very clear because the definitions of “loss control management” and “private security” in clause 2 of the Bill are obscure, to say the least.
Here is the definition of “loss control management”:
“loss control management” means the practice of loss prevention responsible for prevention of partial or total loss of assets, property, life, systems, infrastructure, information, finances, time and other aspects that reduce the value of an organisation through identification of risk and vulnerabilities and the designing, development, evaluation and implementation of policies and procedures, systems and investigation of any loss that may arise from breach, negligence, omission, accident or natural occurrences”.
It may be possible to extract some sense out of that, but one has to work at it.
As for private security, that is defined as:
“private security as defined in the Private Investigators and Security Guards Control Act”
When one turns to that Act however, one finds no such definition – indeed the term is not even used in the Act. Hon Murire seems to have realised this, because he proposes an amendment that will insert the following definition in the Bill:
“private security means armed or unarmed security or protection of physical and non-physical assets including human beings, infrastructure, finances, cyber space and other forms of property provided as a service on private basis and”.
Hardly a model of clarity, but it makes some sense.
While the Bill remains a private Bill this lack of clarity may not matter because the Institute will be able to control no one other than its own members. If however the Institute is given power to stop non-members from setting up business as loss control managers or private security managers, as proposed in the amendments, then it will be important to define precisely who is and who is not a loss control manager or a private security manager. Because of the vague definition of “loss control management”, lawyers, doctors, plumbers and motor mechanics – all of whom are concerned with protecting clients, patients and customers against loss – could be classed as loss control managers. That will not matter under the Bill at present, because they will not be obliged to join the Institute and it will not matter to the general public who the Institute chooses to accept as members. If however Hon Murire’s amendments are adopted, lawyers, doctors, plumbers and motor mechanics will have to get practising certificates from the Institute.
Council of the Institute
The Institute will be managed by a 13-person Council elected at an annual general meeting in terms of clause 8 of the Bill. It is not clear if Council members must be members of the Institute – apparently not, because according to clause 8(1)(a) the Council will have to contain representatives of professional bodies, business associations and non-governmental organisations [though this provision will be removed if Hon Murire’s amendments are adopted]. There is no indication in the Bill of what qualifications Council members must have. There should be.
An amendment proposed by Hon Murire will require candidates for election as councillors to be approved by the Minister of Home Affairs and Cultural Heritage. As we shall point out later, this will mean that the “profession” whose affairs will be governed by the Institute will not be a profession in the true sense.
Annual general meetings
The Institute will have to hold general meetings once a year “later than one month after the end of the Institute’s financial year”, according to clause 15(1) – which seems a bit open-ended. [If on the other hand the clause is supposed to read “not later than one month” after the end of the financial year, there won’t be enough time for the Institute’s financial statements to be drawn up and audited before the meeting].
According to clauses 15(6) and 16(3) of the Bill, only sitting members of the Institute’s Council will be allowed to vote at general meetings; ordinary members of the Institute will have no vote, though they will be allowed to attend the meetings and take part in discussions. This seems very undemocratic, to put it mildly.
Code of conduct
Under clause 17 the Council will draw up a code of conduct for members of the Institute, which is obviously an important power for any professional body to have, and will be able to punish breaches of the Institute’s values. The clause however goes on to say that members will be obliged to report conflicts of interest to the Institute. This is curious because conflicts of interest will normally arise between members and their employers, clients and customers. Any conflicts should therefore be disclosed to their employers, clients and customers rather than to the Institute.
Under clause 21 of the Bill, the Minister will have power to make regulations “after consultation with” the Council of the Institute [the proposed amendments will change this to read “in consultation with or upon recommendation of the Council”, which will make the Council’s involvement rather indeterminate]. The Minister’s power is wide-ranging and will extend to fixing the qualifications of members of the Institute and the general principles – i.e. standards – of loss control.
Institute Will Not be a True Professional Body
The Bill will give the Minister of Home Affairs and Cultural Heritage considerable powers over the Institute and its members. In addition to permitting the Minister to make regulations governing professional standards, it will also give him or her the right to approve – and therefore to veto – the election of councillors.
One of the hallmarks of a profession is that it is self-regulating, i.e. governed by a body, elected by members of the profession, which determines the qualifications of members and fixes and enforces professional standards. The Institute of Chartered Accountants of Zimbabwe, for example, makes by-laws fixing the qualifications for membership and the professional standards members must follow; the Law Society of Zimbabwe fixes professional standards to be observed by lawyers; the Council of Veterinary Surgeons has the same powers for veterinary surgeons; and so on. In this Bill however it will be the Minister who regulates the profession of loss control management, and he or she will merely have to consult the Council, not get its agreement.
Whoever the members of the Institute will be – and as we have said, the Bill does not identify them clearly – they will not constitute a profession.
How Will the Institute Come into Being?
There is yet another defect in the Bill and it is a very important one: the Bill provides no way for the Institute to start operating.
If or when the Bill becomes an Act the Institute will exist on paper only: it will have no members, no Council and no officers. How will it get them? The Bill does not say. Applications for membership will have to be approved by the Council, according to clause 13 of the Bill, but the Council cannot exist until there are some members of the Institute. The Bill has to make some provision for the first members of the Institute to be enrolled and for the first Council to be elected or appointed, otherwise the Institute will never get off the ground.
Can the Proposed Committee Stage Amendments be Made to the Bill?
We have said that the Bill in its present form is really a private Bill because no one will be obliged to join the Institute in order to practise as a loss control manager. If the proposed amendments are adopted however the Bill will become a public Bill. Loss control managers will have to be registered with the Institute and anyone practising as a loss control manager – whatever that may mean – will commit an offence if they are not registered. Hence the amendments will change the scope and nature of the Bill completely. It will be a different Bill.
Section 141 of the Constitution states that Parliament must facilitate public involvement in its legislative processes and must ensure that interested parties are consulted about Bills. When this Bill was referred to the portfolio committee after being introduced in the National Assembly, few members of the public will have had any interest in it. If the amendments are passed however a great many people will have a very real interest in it - lawyers, doctors, plumbers, motor mechanics and other people who suddenly find they have to register with the Institute to carry on their professions and trades.
The amendments should not be passed therefore unless interested parties have been given an opportunity express their views.
It will be clear from what we have said in this bulletin that the Bill is seriously defective. The defects we have dealt with in this bulletin, and the many lesser ones we have not mentioned, will need to be rectified before the Bill can become law. They could be rectified by Committee Stage amendments in addition to those that have already been proposed, but really the Bill should be completely redrafted.
As we pointed out at the beginning of this Bulletin, the Bill lapsed at the end of the last parliamentary session. The National Assembly should not vote to revive it. Hon Murire should be left to redraft the Bill or, better still, to approach the Ministry of Home Affairs and get the Bill redrafted in proper form as a public Bill.