The Law Making Process
State Organs ad their powers
The starting point to understanding state organs and their powers is to recall an oft-quoted statement from the opening paragraphs of the 1776 American Declaration of Independence:
We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that … it is the right of the people … to institute new government, laying its foundation on such principles, and organising its power in such form, as to them seem most likely to effect their safety and happiness.
This statement emphasizes the fact that the power of governmental organ is necessarily limited and defined by the society that creates the government. There is thus no magic in the powers of state organs; their power is given and defined by the people. Every society has rules that define the structures of the state and spell out their powers. These rules may be written or unwritten, or a combination of both. A totality of these rules make up what is called the Constitution of a country. The law emanating from such rules is called constitutional law. Professor Peter Hogg has aptly described constitutional law as follows: Constitutional law is the law prescribing the exercise of power by the organs of a state. It explains which organs can exercise legislative power (making new laws), executive power (implementing the laws) and judicial power (adjudicating disputes) and what the limitations of those powers are …. Civil liberties are also part of constitutional law because civil liberties may be created by the rules that limit the exercise of governmental power over individuals.
Indeed, in most countries, including Zimbabwe, the rules defining the structure and powers of governmental organs are embodied in its Constitution. It is mainly to these documented rules that reference should be made in order to understand the powers of state organs. Answers to the following questions are all a matter of constitutional law: Which organ(s) make(s) law? What are the requisite law-making processes?
Constitutional law utilizes the principle of separation of powers. In its classical sense, this principle of separation of powers requires that, as a guarantee for the liberty of the individual, political power should not be concentrated in one individual or organ of government. It requires that governmental functions be separated into three different groups and each be performed by different persons. This is thought to be a way of creating ‘checks and balances’ by one organ against another. The three main governmental organs are the legislature, the executive and the judiciary. Thus, the organ that makes law (the legislature) should be different from the organ which implements it (the executive) and should both be different from the organ which interprets it in the event of a dispute (the judiciary).
Although Zimbabwe has adopted the basic framework of creating three state organs in terms of the principle of separation of powers, it has not fully embraced the strict separation of functions of government into different organs and individuals. A brief description of the structure and functions of the key state organs is essential for an understanding of the law-making process.
The legislature (the law-makers)
A principal function of the state is that of making laws for the proper ordering of society. The popular conception of governance is that of making laws to be observed in and by the community. This important function of the state is allocated to the legislature, which in Zimbabwe consists of Parliament and the president. Parliament itself is composed of two chambers: the House of Assembly (Lower House) and the Senate (Upper House).
For a law to be said to be a law made by the legislature in Zimbabwe, it must pass through two stages. First, it must be passed by the requisite majority in both houses of Parliament. Second, once it has been passed by Parliament, it should be assented to by the president before it becomes law. This second stage makes the president very much part of the legislature in Zimbabwe. The president is a separate organ from Parliament, but he has the power to accept or reject laws that it has passed. This is so, even though the president is also head of the executive, which implements the law. This state of affairs essentially allows the executive (the Cabinet) to have a final say on the law-making process.
The nature of this power relationship between the president and Parliament becomes particularly interesting when the former decides to reject a law duly passed by Parliament. Where this happens, the bill is returned to the House of Assembly, which then has two options: it can either agree with the president and drop the proposed law or it can send the bill back to the president. However, it can only send the bill back if it has resolved to do so by a two-thirds majority. A simple majority is not enough to disagree with the president. On being presented with the bill for a second time, the president then has two options: assent to the proposed law or dissolve Parliament and call for fresh elections. This shows that while Parliament has the power to force the president into signing a law, this power is limited because the latter may override it by dissolution.
Before the 2007 Constitution of Zimbabwe Amendment No. 18, the House of Assembly was composed of 150 members, 120 of whom were elected by the people of Zimbabwe in 120 constituencies. The remaining 30 comprised 12 Presidential appointees; ten Provincial Governors – ex-officio members of Parliament appointed by the president; and eight traditional chiefs elected by chiefs in electoral colleges constituted in terms of Section 40 of the Electoral Act (Chapter 2:01). Today, the House of Assembly is composed of 210 members, all of whom are directly elected.
Before Amendment 18, the Senate was composed of 66 members, 50 of whom were elected by the people of Zimbabwe in 50 senatorial constituencies. The remaining 16 comprised the president and Deputy president of the Council of Chiefs; eight chiefs, elected by chiefs in terms of the Electoral Law and representing each of the eight provinces which are not metropolitan provinces; and six Presidential appointees. Today, the Senate is composed of 93 members, 60 of whom are elected in 60 senatorial constituencies. The other 33 comprise the president and Deputy president of the Council of Chiefs; 16 chiefs – two from each of the eight rural provinces; ten provincial governors; and five Presidential appointees.
The House of Assembly is presided over by the Speaker, who is elected by members at their first sitting. He/she cannot vote in the passing of laws. Even a person who is not a member of the House of Assembly may be elected a Speaker, provided he/she has been a member of Parliament before and meets the qualifications for election to the House of Assembly. However, only a member of the House of Assembly qualifies to be elected Deputy Speaker. If a member of the House of Assembly is elected Speaker, he/she shall cease to be a member and his/her seat shall become vacant and a by-election called.
The Senate is presided over by the president of the Senate, who is also elected by members at their first sitting. As with the House of Assembly, even a person who is not a member of the Senate may be elected as president of the Senate, provided he/she has been a member of Parliament before and meets the qualifications for election to the Senate. If a Senator is elected as president of the Senate, he/she shall cease to be a Senator and his/her seat shall become vacant and a by-election called.
Apart from its law-making functions, Parliament also has the power to supervise the executive arm of government by, among other things, criticizing government policies. Through this role, Parliament has the power to institute investigations into any activity of the state and to publicize its findings. This power can be used to ensure accountability on the part of government ministers. The most important manifestation of this power is the ‘question and answer’ session in Parliament, where parliamentarians are entitled to ask government ministers any questions pertaining to the conduct of government and the latter are obliged to answer those questions truthfully. The answers given in Parliament are essentially for the benefit of the public. Members of the public seeking answers to questions of public importance may do so by asking their MPs to pose the relevant question(s) in Parliament. In Zimbabwe, fear of facing embarrassing questions in Parliament may ‘force’ government ministers to maintain some respect for the law and the rights of the people.
The executive arm of government is composed of the president, the Cabinet, and all law enforcement agencies of the state, namely, the police, the military and the prison service. The ultimate authority of the executive functions of the state is vested in the president, who exercises most of his functions through the Cabinet.
The president is elected for a five-year term by all registered voters. There is currently no limit to the number of terms a person may serve as president of Zimbabwe. He/she has sole power to appoint and dismiss Vice Presidents and Ministers; to dissolve Parliament; and to appoint Provincial Governors. He/she has to act on the advice of the Cabinet to appoint ambassadors, to enter into international treaties, to proclaim martial law and to declare war. The president’s exercise of his/her discretion – ‘deliberate judgement’ – in performing tasks permitted by the Constitution cannot be questioned in a court of law.
The role of the executive arm of government is to implement laws made by Parliament and to run the affairs of the state. The executive also has the responsibility to initiate policy, and in that regard it is empowered to propose laws for consideration by Parliament. Although the theory of separation of powers in its absolute sense would require that members of Parliament be separate from members of the executive, the system in Zimbabwe requires members of the executive to be drawn from Parliament. If the president appoints a minister from outside Parliament, that person must obtain a seat in Parliament within three months or the appointment will lapse.
The judiciary is an arm of the state. However, judges are required to be independent in the discharge of their duties. This independence of the judiciary from the other two arms of the state is the cornerstone of the theory of ‘separation of powers’. The function of the judiciary is to interpret the law, something that the two other organs cannot do. If the executive and/or the legislature is/are not happy with a certain interpretation of the law by the courts, the only way out is to seek a change to the law rather than disregard the interpretation and argue that it is wrong. The prerogative to interpret the law lies only with the judiciary.
One of the most important functions of the judiciary in Zimbabwe is that of adjudicating on the constitutionality of Acts of Parliament. An Act of Parliament or any other law which contravenes the Constitution can be declared unlawful by the Supreme Court. This power has already been exercised in a number of well-known cases. These include:
- The suspension of Mr Ian Douglas Smith (Ian Smith)’s salary after he had been suspended from Parliament was held to be unlawful because it contravened Section 16 of the Constitution, which prohibits compulsory acquisition of property without adequate compensation.
- The requirement in the old Law and Order Maintenance Act that police permission be sought before holding a public meeting was held to be unlawful because it contravened Section 21, which protects freedom of assembly.
- Corporal punishment was declared unlawful because it contravened Section 15, which protects human dignity.
- )The compulsory requirement that a national ID be carried at all times was declared unlawful as it contravened Section 22 of the Constitution, which protects freedom of movement.
- The monopoly of the Posts and Telecommunications Corporation was declared unlawful as a contravention of the freedom of expression protected by Section 20.
This power of the Supreme Court to determine the constitutionality of Acts of Parliament puts an independent judiciary in a secure position to exert checks and balances on the powers of the executive and the legislature. However, by a proper amendment of laws, Parliament can nullify certain decisions of the courts.
The process of law-making in Parliament
The Constitution of Zimbabwe specifies the manner in which Parliament legislates. Section 51 provides that ‘the power of Parliament to make laws shall be exercised by bills passed by the House of Assembly and the Senate and assented to by the president’. This means that Parliament can only make law through the passing of bills. Schedule 4 of the Constitution sets out some, but not all, aspects of the procedures involved. The Constitution empowers Parliament to make what are called ‘Standing Orders’ which prescribe the procedure for the passing of bills. Accordingly, the two sources to which reference must be made in terms of the procedure for the passing of bills are:
- Schedule 4 of the Constitution and
- Standing Orders of Parliament.
Standing Orders constitute a special form of legislation that is sanctioned by the Constitution. If Parliament attempts to pass bills contrary to the procedure set out in the Standing Orders, the resultant Act is invalid and of no force or effect.
This is the stage leading to the finalization of the proposals that are contained in the bill that is sent to Parliament. This is exclusively a political process dominated by the executive. Legislative proposals result from a variety of sources such as political party manifestos, government departments, commissions of enquiry, parliamentary portfolio committees, pressure groups and responses to disasters.
A major issue is the extent to which government is obliged to consult interested parties before presenting a bill to Parliament. There is no legal obligation under the laws of Zimbabwe for the Government to consult, let alone to be bound by the views of, any person before presenting a bill to Parliament. Consultations are carried out at the Government’s discretion. In other systems, this is not the case. Some countries have constitutionally entrenched legal requirements for the executive to consult and to state, in a memorandum to Parliament, what steps have been taken to solicit the views of the people.
In the United Kingdom, the practice is to issue either a ‘white paper’ or a ‘green paper’ before sending bills to Parliament. A white paper states proposals without government expressing a view and calling for public discussion, whereas a green paper sets out tentative proposals of government and calls for comments on them. After discussions, a bill is then formulated, purportedly taking into account the inputs of the public discussion.
The process of how proposals eventually become bills is largely shrouded in secrecy, but appears to be as follows:
- Cabinet makes a policy decision that a certain law is to be made, for example, to restrict the media or ban foreign funding of NGOs.
- The decision is communicated to the relevant government department by the relevant ministers. It must in turn prepare a set of detailed principles to govern the legislation.
- These principles are sent to the Cabinet Committee on Legislation (CCL). This is a sub-committee of cabinet tasked with supervising legislative drafting. Its function is to debate and approve the principles in the light of the policy spelt out by the full cabinet.
- From the CCL, the principles are sent to the Attorney General’s office, where a drafts person is appointed and assigned the role of drafting the piece of legislation. He/she must work in constant consultation with the relevant government department.
- When the department is satisfied with the draft, it sends a draft bill together with an accompanying memorandum to the CCL, which must scrutinize it in the light of the principles and the policy articulated by the full cabinet.
- After approval by the CCL, the bill may either be sent to the full cabinet, in case of important or controversial bills, or to Parliament, if the CCL has been mandated to follow that route.
- Stage 1 - First reading
- Stage 2 - Reference to the Parliamentary Legal Committee (PLC)
- Stage 3 – Second reading
- Stage 4 – Consideration by committee
- Stage 5 – Reporting
- Stage 6 – Referall to the PLC
- Stage 7 – Third reading
- Stage 8 – Transmission to the other house
- Stage 9 – Presidential assent