THE continued use of Presidential Powers Temporary Measures Act by President Emmerson Mnangagwa is unconstitutional, legislators have argued in court.
High Court judge Justice Philda Muzofa reserved judgement in the case in which opposition legislators Willias Madzimure and Allan Markham had taken Mnangagwa and Attorney-General Prince Machaya to court over the abuse of power.
Madzimure and Markam want the court to declare the Presidential Powers Temporary Measures Act invalid. Their argument is that the Act is unconstitutional as it gives the President sweeping powers for making laws on virtually any subject and to make laws that override Parliament.
“We also seek an important declaratory to the effect that consistent with Section 134(f) of the constitution of Zimbabwe, a statutory instrument should not come into effect until it has been scrutinised by Parliament in particular by the Parliamentary Legal Committee before it comes into operation,” the court application reads.
“The practice for all statutory instruments including regulations made by the President in terms of the Act is that they are published and gazetted and they take operation immediately. Yet section 134(f) makes it clear that they must be laid before Parliament and scrutinised by the Parliamentary Legal Committee. The anomaly is that by the time that Parliament is vested with the statutory instrument and the time that the Parliamentary Legal Committee meets, the regulations will be in operation.”
“In the case of regulations made under the Act sometimes the six months life of the particular statutory instrument would have been reached.”
The lawmakers said Mnangagwa did not have a constitutional mandate to enact laws.
“Under chapter 5, I draw this honourable court’s attention to the powers of the President which are clearly spelt out in section 110 of the constitution. The functions of the President according to section 110 are the following: (a) Assenting to and signing bills; (b) Referring a bill to the Constitutional Court for opinion an advice on its constitutionality; (c) Summoning the National Assembly, the Senate or Parliament to an extraordinary sitting to conduct special business; “(d) Making appointments which the constitution or legislation requires the President requires to make; (e) Calling for elections in terms of the constitution; (f) Calling referendums on any matter in accordance with the law; (g) Deploying the Defence Forces; (h) Conferring honours and awards; (i) Appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives; and (j) Receiving and recognising foreign diplomatic and consular representatives.”
“In none of these functions is the President empowered to make laws as he is allowed to by the Act,” the application reads.
They also argue that the Act goes against the provisions of the constitution on separation of powers. Madzimure and Markham said the Act was a direct infringement of section 134(a) and (d) of the constitution of Zimbabwe which proffers and makes it clear that Parliament’s primary law-making powers shall not be delegated and that any law delegating power must define the limits of that power.
“We further seek a declarator to the effect that any statutory instrument made, should only come into existence after scrutiny by the Parliament and the Parliamentary Legal Committee in terms of Section 134(f) of the Constitution,” the application reads.
“Therefore we seek a declaratory to the effect that the statutory instrument made in terms of delegated legislation should only come into being after approval by Parliament’s Legal Committee consistent with section 134(f) of the constitution.
“Furthermore, it is a breach of section 134 (d) of the constitution. In that it fails to specify he nullity of the power, the nature and scope of the statutory instrument and the principles of tendency. In short, it gives the President a blank cheque.”