Statutory Instruments are the most common form of secondary legislation and are often the detailed regulations and orders needed to bring an Act of Parliament into force. They may also be used to make changes to the requirements of an Act but this will have to be within the powers set out in the original legislation.
A statutory instrument has the same legal status as an Act of Parliament, except that it must be consistent with the relevant Act of Parliament delegating the authority to make that statutory instrument. When it is consistent with the relevant Act, it is said to be intra vires. The relevant Act is called the ‘parent Act’ or the ‘enabling Act’. A statutory instrument that is inconsistent with the enabling Act is said to be ultra vires and, for that reason, is void. For a statutory instrument to be intra vires, it must meet two requirements:
- First, it must be within the powers of the delegated authority.
- Second, it must not be grossly unreasonable.
Importance of Statutory Instruments
Statutory instruments have proved to be useful and necessary measures of control. They are one of the most important means of leaving Parliament a free hand to decide major questions of policy without being forced to commit itself to detailed rules. The use of subordinate legislation has the merit of being able to reflect quickly scientific advances and master technical details which would be tedious, if not impossible, were it left to Parliament. The time factor as well as the impracticality of the whole Parliamentary body coming to a conclusion in some circumstances makes it vastly more convenient for certain functions to be delegated to a subordinates.
The Substance of Statutory Instruments
Statutory instruments may be infinitely various in their content. Many of them govern administrative detail and so are not worthy of inclusion in an Act of Parliament. Others are essentially substantive legislation but cannot be included in an Act because of the rapidity with which they may need to be changed or some other reason. In short, statutory instruments may be infinitely various in substance. They may also be judicial, executive or legislative in character, although our present concern is primarily with regulations or subordinate legislation.
Statutory Instruments in Zimbabwe
The government passed at least 236 Statutory Instruments in 2018 with the last one being SI 2018-236 – Deeds Registries Regulations, 2018. There were probably more as some instruments tend to share the same number. In 2019 the government passed at least 285 instruments.
In 2019 the media focused on the legality and improper use of SIs that have been used to bypass Parliament. In the spotlight was the conferment of arresting powers on the Zimbabwe Anti-Corruption Commission and the legality of the Statutory Instrument that introduced the new local currency. In July 2019, an Extraordinary Government Gazette, SI 143 amended the Criminal Procedure and Evidence Act was published. In terms of this instrument, the Minister of Justice designated Zacc officials as peace officers. In terms of the Criminal Evidence Act, a peace officer has the powers to effect an arrest with or without a warrant. The problem as noted by the media, with this was that ZACC's powers and functions flow directly from the Constitution and yet this SI expanded its functions, giving it more than the Constitution permits.