18/11/2016, 3:49 PM – Norman FOSMM: what is the difference between the PPTM and the RECON Act……if any….as far as their operation period is concerned
18/11/2016, 3:49 PM – Norman FOSMM: from the date of the publication ……what transpired to the PPTM…….AFTER THE 14 days envisaged within the old constitution expires
18/11/2016, 3:49 PM – Norman FOSMM: 31J Public emergencies
(1) The President may at any time, by proclamation in the Gazette, declare in relation to the whole of Zimbabwe
or any part thereof that—
(a) a state of public emergency exists; or
(b) a situation exists which, if allowed to continue, may lead to a state of public emergency.
(2) A declaration under subsection (1), if not sooner revoked, shall cease to have effect at the expiration of a
period of fourteen days beginning with the day of publication of the proclamation in the Gazette unless, before the
expiration of that period, the declaration is approved by resolution of the House of Assembly:
Provided that, if Parliament is dissolved during the period of fourteen days, the declaration, unless sooner revoked,
shall cease to have effect at the expiration of a period of thirty days beginning with the day of publication
of the proclamation in the Gazette unless, before the expiration of that period, the declaration is approved by
resolution of the House of Assembly.
[Subsection amended by section 26 of Act
18/11/2016, 3:53 PM – Shingai Ndoro: “But to tear down a factory or to revolt against a government or to avoid repair of a motorcycle because it is a system is to attack effects rather than causes; and as long as the attack is upon effects only, no change is possible. The true system, the real system, is our present construction of systematic thought itself, rationality itself, and if a factory is torn down but the rationality which produced it is left standing, then that rationality will simply produce another factory. If a revolution destroys a systematic government, but the systematic patterns of thought that produced that government are left intact, then those patterns will repeat themselves in the succeeding government. There’s so much talk about the system. And so little understanding.”
― Robert M. Pirsig, Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values
18/11/2016, 3:53 PM – Shingai Ndoro: @263774968850 take note as per your msg.
18/11/2016, 4:33 PM – Norman FOSMM: then what do you suggest….
18/11/2016, 5:40 PM – Tapiwa Chitambo: We have a mandate as executive members of FOSMM to bring to public attention, matters of gross constitutional abuses by the use of presidential emergency powers by the present government. We must advocate for the clarity from the constitutional obligations and procedures when invoking the PPTM
1. What could have been so urgent for the President to invoke the use of PPTM to issue an order on the SMM issue, and appoint an administrator in less than a week without giving interested parties a chance to challenge the order?
2. The legality of a court to use evidence that was presented and dismissed in another court and draw conclusions from this evidence to profer a different judgement? ( Maweres extradition case in SA)
3. Does the Reconstruction Regulations have powers to infringe on the rights ton property and dignity of juristic persons in terms of law.
4. Can Parliament retrospectively give judicial recognition to an unconstitutional act involving the use of executive power and clothe it with constitutional relevance?
18/11/2016, 6:34 PM – TinasheMpasiri: Tune in The1873fm.com at 19:00(CAT) and catch Dr Vusi Sibanda with C.E.O of Helen Suzman Foundation, Francis Antonie, unpacking Capturing The Constitution
18/11/2016, 7:22 PM – Wildfire 1873: The CEO of Helen Suzman Foundation, Francis Antonie now live on 1873FM
18/11/2016, 9:40 PM – Tawanda Fosmm: Can constitutional wrongs be washed away with time
18/11/2016, 10:53 PM – Tapiwa Chitambo: 👀👀
19/11/2016, 4:59 AM – +1 (780) 838-1646: Cde Ras: nothing has gotten into my mind or pockets lol
19/11/2016, 5:06 AM – +1 (780) 838-1646: Consttn says Parly’s primary law making power must not be delegated. Hwever Parly can delagate power to make SIs. problem is Consttn does not prohibt SIs from amending a principal Act. Thats my argument
19/11/2016, 5:08 AM – +1 (780) 838-1646: So as we all know Bob used SI to amend the principal Act and there is no Constnal provision prohibiting that
19/11/2016, 5:10 AM – +1 (780) 838-1646: So all these arguments that an SI or a Regulation or PPTMA can not amend principal Act cld be sensible and logical but as we may all know, Constitutionality of something is not based on whethrr what was done makes sense or not but rather on whether what was done is consistent with the Consttn or not
19/11/2016, 5:13 AM – +1 (780) 838-1646: in my view to prevent all this, the Consttn shld have prohibited SIs from amending an Act of Parly as well as Consttn.It shld also have clearly prohibited PPTMA from being invoked to amend any Act of Parly. That was not done and that gives politicians space to manouvre in these kinds of situations
19/11/2016, 5:16 AM – +1 (780) 838-1646: In any case, what is “Parliament’s primary law making power”? Is there an Act of Parly defining that? Courts will hv big room to interpret that statement.
19/11/2016, 5:17 AM – +1 (780) 838-1646: Finally we shld learn from these situations to improve the supreme law and Acts of Parly.Otherwise crafty politicians wl continue to capitalize on the ambiguilties of the supreme law
19/11/2016, 5:27 AM – Dziva Mawere: What is the limitation imposed in relation to law making?
19/11/2016, 5:32 AM – Dziva Mawere: The use of SIs in a normal functioning system cannot be dismissed but it can’t be habitually used to make it the norm
19/11/2016, 5:41 AM – Dziva Mawere: http://www.herald.co.zw/law-to-back-bond-notes-gazetted/
19/11/2016, 6:25 AM – +1 (780) 838-1646: Dziva: I fully agree.
19/11/2016, 6:27 AM – Dziva Mawere: Thanks. Perhaps we can ask the underlying premise on which the delegated law making powers are or should be exercised.
What kind of morality should underpin this framework?
19/11/2016, 6:28 AM – +1 (780) 838-1646: very valid questions Dziva
19/11/2016, 6:33 AM – +1 (780) 838-1646: I think exercise of delegated pwr shld be underpinned on fairness and national interest/common good. However these shld be clearly defined so that there is a clear legally binding definition of what is fairness and common good. And there shld be clear punitive measures such as suspension or impeachement if one wrongly exercises delegated pwr
19/11/2016, 6:38 AM – Dziva Mawere: Can an unconstitutional act be cured by legislation?
19/11/2016, 6:58 AM – +263 77 514 6759: No. The national assembly and all other organs of the state are subject to the constitution as the supreme law. Unless such amendment is allowed by the constitution itself such a process would be ultra vires the constitution therefore invalid. In my view it is only the constitutional court upon being approached which could make such a pronouncement and cause for amendment. I
19/11/2016, 7:00 AM – +263 77 514 6759: Though arguable, I have a similar argument though a bit different but similar argument which I have taken to the supreme Court I will update the group on the matter.
19/11/2016, 7:00 AM – Mutumwa Mawere: We can agree that there are limits to the exercise of legislative powers whether exercised directly or temporarily through the agency of a President
19/11/2016, 7:11 AM – Mutumwa Mawere: Are you aware that the morality of the impugned reconstruction legislation used in respect of SMM was premised on the following principles:
1. The state is a superior creditor.
2. The state comprises not an independent juristic person but all entities duly established in terms of legislation as juristic person. If you look at the regulations and the successor act, the state is not defined. This raises the question whether one Act or regulations can automatically and arbitrarily subordinate the operations of other laws. In this case, the reconstruction creates powers for the Minister of Justice and not the Court to appoint an Administrator in respect of a company that in the ordinary course of business may have a bill that is not due to a state entity. Without the knowledge and consent of the relevant state entity, the reconstruction law allows the Administrator to accept the claims of any such state entity as claims enforceable under the reconstruction legislation.
Let us go step by step.
19/11/2016, 7:24 AM – Shingai Ndoro: This is very powerfully thought out.
We need what Norman had done to include this without any hesitation.
I’m impressed hey.
19/11/2016, 7:25 AM – Mutumwa Mawere: Should we burden Norman or add our voice as ideas come into thought.
19/11/2016, 7:45 AM – Shingai Ndoro: He had come up with a draft and I’m saying can this be added on that.
19/11/2016, 7:47 AM – Dziva Mawere: Thanks. Let us be the change. Should we burden one individual at this stage or think aloud?
19/11/2016, 8:01 AM – +263 77 514 6759: That’s marvellous. The reconstruction also arrogates the administrator the sole responsibility to declare the reconstruction a failure with the court’s oversight role opening floodgates for abuse. The report on the progress of reconstruction was done more than six years ago and the administrator is simply enjoying the fruits from amnest
19/11/2016, 8:03 AM – +263 77 514 6759: Amenities making it abundantly clear that the process has failed but alas . It’s interesting I want to see what the court will say about the court challenge we filed so far
19/11/2016, 8:03 AM – Shingai Ndoro: When was the filing? What was the filing about?
19/11/2016, 8:03 AM – +263 77 514 6759: Without the court’s oversight role
19/11/2016, 8:05 AM – +263 77 514 6759: 2 months back. Seeking a declaratur on the failure of the reconstruction and to open gates for creditors to sue
19/11/2016, 8:05 AM – Dziva Mawere: Failure is part of implementation but we are trying to develop a better understanding of the morality informing the enterprise
19/11/2016, 8:06 AM – Shingai Ndoro: With which court?
19/11/2016, 8:07 AM – +263 77 514 6759: That’s another facet in my view it’s well conceived
19/11/2016, 8:07 AM – +263 77 514 6759: Byo high court
19/11/2016, 8:07 AM – Shingai Ndoro: Oh ok
19/11/2016, 8:09 AM – Dziva Mawere: Something that violates the constitution can never produce secure income. Do you think the cause of action makes sense? It is talking about the distribution of the proceeds of unconstitutional schemes.
19/11/2016, 8:30 AM – Tapiwa Chitambo: Schemes clothed by Presidential powers. Our challenge should be to question the limitations of these powers by the constitution.
19/11/2016, 8:39 AM – +263 73 214 5751: By Eddie Cross
Looking back over the past sixteen years since we started this fight with Zanu PF, there are three examples of their total failure to behave as a responsible governing Party that standout for me.
The first was Marange. In 2000 a young geologist, working for De Beers Diamond Mining Company, found diamonds in quantity along the banks of the Save River.
After extensive sampling and trenching he reported back to his superiors in South Africa that the find was of little value and should not be pursued. In 2006 he packed up his camp and went back to his home base leaving behind a Land Rover shell and some rubbish.
In London a group of white Zimbabweans watched the Ministry of Mines website and waited for the De Beers claims to lapse. When they did they flew out and took up the abandoned claims and resumed exploration. They were assisted by the discovery of a computer disc in the Land Rover shell cubby hole, which contained the results of 6 years of De Beers exploration. In six weeks they found diamonds of gem stone quality.
The discovery was disclosed in a notice to the London Stock market as it was going to influence the value of ACR Shares. The Minister of Mines was informed and immediately took steps to take the claims away from their rightful owners.
They protested, went to Court, won their case but it made no difference. A “diamond rush” ensued and over 40 000 small scale miners swarmed over the site extracting diamonds worth many millions of dollars.
When they woke up to the size and value of the diamond field, the Zanu PF Party took steps to take over the discovery – driving the thousands of small scale miners off the site with bullets, dogs and poison spray.
They then formed 8 companies – all with the State owned and controlled Zimbabwe Mining Development Corporation as a 50 per cent or more partner and started mining in earnest. Heavy duty earthmoving equipment was purchased together with large processing plants to extract the diamonds from thousands of tonnes of sand. An airport capable of taking passenger aircraft with a control tower and armed defense was constructed.
In the next 8 years they extracted 140 million carats of raw diamonds with a face value of $17 billion. A mere $600 million (0,42 per cent) found its way to the State coffers. The rest vanished. When auditors were finally ordered onto the site, they found 8 companies with run down and broken machinery and equipment. 60 000 hectares of mine dumps and excavations and combined losses before tax of nearly $100 million.
Had this discovery been made in Botswana, 70 per cent of the gross revenue from sales would have accrued to the State ($12 billion) and GDP would have grown by $48 billion over the 8 years – $6 billion a year or increasing the GDP per capita in 2015 from $14 000 to $19 000, confirming the position of Botswana as a middle to upper income State, the wealthiest State per capita in sub Sahara Africa.
Instead, Zimbabwe slid, in the same period to the position of the poorest country in per capita terms in Africa at $1200, 10 per cent of the average income in Botswana, a small piece of semi desert. In the process we over supplied world markets and drove prices down to the detriment of all other producers. Botswana was forced to draw on its hard earned reserves to make up the decline in the value of sales.
All along Zanu PF leaders understood exactly what should have been done at the start and once all the easy mining was done and they were left with the much harder and more sophisticated task of hard rock mining for diamonds, they announced that they were going to consolidate the 8 mining companies into one and start mining and selling diamonds on the open market.
Even then, they have completely messed up the new arrangements, there is still no transparency, the same collection of crooks is in charge and Zimbabweans still derive no benefit at all from what is perhaps the largest discovery of diamonds in the past century.
The second was ZISCO. At Independence in 1980 Zisco Steel was the second largest integrated steel plant in Africa. It employed some 6000 workers in a network of companies that produced rolled steel, long products, reinforcing rods and wire.
Half its output was exported. By 2008 it was a broken, almost abandoned shell, producing nothing but scrap metal for dealers. Its associated town, Redcliff was a shadow of its former self, short of water, a bankrupt Town Council and virtually all its residents unemployed.
The GNU changed all that – the new MDC Minister (Ncube) took up the challenge and negotiated with the third largest Indian steel maker to take over the plant, get it back up again and producing double its pre Independence volume of steel and steel products and developing a large iron ore mine to produce and export pig iron pellets for export in bulk to the world market – $10 billion dollars of new investment. The commodity cycle was at its peak and the project managers viewed the enterprise as a real opportunity.
In October 2010 the deal was signed by the State President watched by the Prime Minister. Then the project ran into Zanu PF. The Minister of Mines allocated the mining rights to the iron ore (40 billion tonnes or reserves) to army officers and Zanu PF heavyweights.
They in turn demanded payment of many millions of dollars for access to these mining rights that should have been simply part of the deal. A 4 year wrangle ensued, the commodity super cycle ended and the global markets for iron ore fell from $140 a tonne to $35. The deal with ESSAR collapsed.
Today all we have is an abandoned plant, derelict subsidiaries, caretakers on site and thousands of unpaid, workers who sit at home and do nothing. Zimbabwe imports all its needs from the world market in the form of finished products. The $500 million of accumulated debts and liabilities of the company are being assumed by the Ministry of Finance as yet another addition to our national debt burden.
Then there is the Fuel Pipeline. In 2010 the MDC Minister of Energy, identified the possibility of constructing a new pipeline for petroleum products from Beira to Harare and then on to Francistown and the Congo.
Six regional States bought into the project and negotiations were started with a South African Company that specialized in pipeline operations. The project, when full developed, would have been headquartered in Harare, would have employed the 400 000 tonnes of underground storage at Mabvuku and cost $3,2 billion.
The annual turnover of the project would have been $9 billion a year and it would have improved security of supply, provided for stocks of product and reduced the pump price of fuel across the entire region.
By the middle of 2013 the negotiations were complete; all that was needed was the Ministers signature following Cabinet approval. The 2013 elections intervened and a new Zanu PF Minister was appointed. He immediately accepted a bribe to switch the project to fuel trading companies in violation of the fundamental principles laid down by regional States for the project.
It is now 3 years since the project was ready for handover and nothing has been achieved. The deal is totally gridlocked by inter Party squabbles and fights over who will control the old pipeline that is being used to siphon off hundreds of millions of dollars into private pockets and fears that the new pipeline will put the old one out or business.
The combined loss to Zimbabwe in terms of capital investment from these three projects runs to over $15 billion – the loss in terms of annual output or turnover is even greater – potential annual turnover is estimated at $17 billion.
With the multiplier effect on GDP, this would have trebled the annual GDP of Zimbabwe from $14 billion to over $40 billion. Annual tax revenues of double the present level; all sacrificed on the altar of one man’s ego and his Parties greed.
It is my conviction that Zanu PF is totally beyond redemption and only a change of government can turn things around in Zimbabwe today.
– See more at: http:/in/nehandaradio.com/2016/06/01/three-examples-hopeless-failure/#
19/11/2016, 8:44 AM – +263 77 514 6759: The constitutionality of the act is undoubtedly unlawful but interests in the whole cause differ. All the same if the reconstruction act is declared unlawful gates will open for litigation against smm. Similarly if the reconstruction is declared a failure the same will result. Creditors especially workers are interested in recovering their dues and nothing more.there cause of action is the unendless reconstruction which barring them from litigating to recover their dues. The mine now is a university and an individual who is employed elsewhere but owed money will not labour much about constitutionality or otherwise but implimentation on the status quo. Be that as it may it is quite an immaculate idea wholesomely to challenge the constitutionality of the Act. For example the very proviso that requires a prospective litigant to approach another litigant before suing is abundantly unconstutional. And a lot more
19/11/2016, 8:59 AM – Tapiwa Chitambo: Mr Mudisi can u pliz explain further👇🏿
For example the very proviso that requires a prospective litigant to approach another litigant before suing is abundantly unconstutional. And a lot more
19/11/2016, 9:39 AM – +263 77 514 6759:
19/11/2016, 10:01 AM – Doc 1873: Is that a ruling of the court on any matter? This morning something was bothering me friends in my sleep. This was the Legislative power delegated to any other body. It is clear that the legislature has power to legislate as it represents the people and whatever it legislate is therefore taken to represent the will of the people. These are the principles of Constitutionalism that they surrender their rights to do certain things like decide laws to representatives. Of however this body delegates such authority to any other person and the law so enacted infringes on the rights of many substantial then such law fails to pass master of constitutionalism and cannot stand as it violate the tenets of government as a representative of the people. Rights of many cannot be limited by those who have not been so mandated to do so. The Temporary Measures Act is ideal for the State of emergency and the need for urgency and therefore cannot be extended to economic problems which do not put the country’s security and sovereignty at risk. The Act is therefore flawed and must be challenged to be declared on those basis because it is on this premise that it was enacted. We need to act decisively in terms of these cases and attack relentless until the gvt of these thieves collapses.
19/11/2016, 10:08 AM – +263 73 411 3006: You are ignorant!!!
19/11/2016, 10:10 AM – Dziva Mawere: I am not sure how far this line of thinking will take us. The ideology is that the elephant in the room is rational and always acts in the public interest.
19/11/2016, 10:17 AM – Shingai Ndoro: @17808381646 did you see the Herald story that the government have realized the foolishness of the SI on bond notes and have not done the right thing by gazetting an amendment bill before it’s taken to parliament?
19/11/2016, 10:47 AM – +263 73 339 4424: Mabhiza where are yu madzegwara
19/11/2016, 10:47 AM – +263 77 514 6759: There are two judgments to that effect however it was before the new constitution which guarantees equality and protection before the law as well as right of access to courts. If challenged under such constitutional arguments obviously they won’t survive.
19/11/2016, 10:49 AM – +263 77 514 6759: The failure to challenge some of these laws is not attributable to lack of will or knowledge but primarily it’s about resources and secondarily absence of willing litigants
19/11/2016, 10:53 AM – Doc 1873: Okay I cannot claim I am not ignorant. Would it not help to educate me than just state that I am ignorant.
19/11/2016, 10:54 AM – Dziva Mawere: 👋🏾👋🏾
19/11/2016, 10:55 AM – Shingai Ndoro: We once had grounds for state of emergency as prescribed by the Old and new constitutions.
PPTMA is supposed to be the instrument for a state of emergency.
19/11/2016, 11:02 AM – +263 77 514 6759: State of emergence is the actual existence or a situation which may emmidiately lead to a state of emergency but honestly how would that arise at smm. Stooges. Big global fraud in a tiny nation.
19/11/2016, 11:03 AM – Doc 1873: That is absolutely true and a funding model would be a better plan to deal with this and earlier I fell short of saying maybe the FOSMM must be a Foundation that fights in a manner similar to the Helen Suzman Foundation and should tackle issues pertain8ng to individuals and general gvt failure as this would easily create ease of getting funding. The SMM matter will also thus find closure through this channel. Which if agreed upon could have to change the name and finding a more suiting name.
19/11/2016, 11:03 AM – Shingai Ndoro: We long discovered here that the SMM issue did not need state of emergency powers at all as it lied outside the meaning of a state of emergency.
19/11/2016, 11:04 AM – +263 77 514 6759: Up voted. That’s great. Thieving
19/11/2016, 11:05 AM – Shingai Ndoro: I would like the FOSMM to be modeled along the lines of the Free Market Foundation.
19/11/2016, 11:07 AM – Dziva Mawere: Let your wish be implemented by all.
19/11/2016, 1:08 PM – Shingai Ndoro: After being advised that SI133/16 is unconstitutional the govt has been forced to table an Reserve Bank of Zimbabwe Amendment Bill in Parliament.
This RBZ Bill is an admission by govt that SI 133/16 is illegal and unconstitutional. The SI should therefore be withdrawn or repealed.
Zanu PF has a majority in Parliament so the Bill is supposed to sail thru with easy. However, Zanu PF MPs have been put in a fix. Their Zanu PF Party will weep them into line and force them into voting in favour of this Bill which will not serve their interests or interests of their voters. Bond Notes are unpopular and are feared to bring back the hyperinflation days of 2008.
19/11/2016, 1:41 PM – Madyira: Presidential Powers Temporary Measures Act isnt a long term solutuion. The bill was going to go through parliament either way. PPTMA is applicable for 6 months.
19/11/2016, 1:48 PM – Shingai Ndoro: What did the SI achieve in the interim?
19/11/2016, 2:46 PM – Dziva Mawere: To cover lack of planning.
19/11/2016, 2:50 PM – Shingai Ndoro: I’m still wondering what ground was covered from the date of the SI on 31Oct to date.
19/11/2016, 2:54 PM – Dziva Mawere: What they knew is that there was no cash and what they want is the end and less about the means.
19/11/2016, 3:15 PM – Doc 1873: Tonite we are expecting the Zimbabwe Diaspora Vote Coalition on radio so font miss it. Over seventeen organisations which include political parties and CSO signed an MOU to get the diaspora vote for Zimbabweans. Tune in 6 to 9pm tonite.
19/11/2016, 3:15 PM – Doc 1873: Remember its easy to listen, download the 1873FM app on play store or through TuneIn and stream.
19/11/2016, 8:38 PM – +263 77 376 6805: Advocate Mahere and other activist who were arrested yesterday have been released on$ US100 bail each.
19/11/2016, 8:52 PM – +263 77 700 5959: I think she wants to take the same route that was taken by the likes of Beatrice Mtetwa, Jestina Mukoko…
19/11/2016, 8:53 PM – +263 77 376 6805: Im supporting her all the way
19/11/2016, 8:55 PM – +260 97 7508519: Democracy vs autocratic. Obvious autocratic wins
19/11/2016, 8:56 PM – +263 77 700 5959: not always. Democracy will win eventually. the will of the people.
19/11/2016, 8:56 PM – Madyira: I think she has 2018 in mind
19/11/2016, 8:57 PM – +263 77 700 5959: Yah. She is doing all the ground work now.
19/11/2016, 8:58 PM – Madyira: Yes
19/11/2016, 8:59 PM – +263 77 376 6805: She is fighting for a good cause
19/11/2016, 9:01 PM – Madyira: Politician are lead by an invisible desire for power which manifest as fighting for a good cause.
19/11/2016, 9:03 PM – +260 97 7508519: Democracy will win when there is great paper work along the process and not the outcome.
19/11/2016, 9:45 PM – +1 (780) 838-1646: @Sovereign: publishing of the Bond Notes in the Gazette is actually a sign that Gvnt is moving fwd with the bond notes law. It does not suggest Gvnt admitting error
19/11/2016, 9:48 PM – +1 (780) 838-1646: Gvnt thru Chinamasa has deposed an affidavit defending invoking of PPTMA to introduce bond notes.Its therefore incorrect to say Gvnt has backed off
19/11/2016, 9:50 PM – +1 (780) 838-1646: what solutions is Mahere proposing? It does not help to just oppose without offering alternativs
19/11/2016, 10:17 PM – +263 77 234 2053: So much for Chinamasa being a brilliant lawyer. He now wants to legitimise an illegal process taking advantage of the national assembly majority
19/11/2016, 10:18 PM – +263 77 234 2053: But ka Cde Musara argument dzenyu idzi kana musina kudyiswa makananzva zvikanzi change your stance
19/11/2016, 10:58 PM – +1 (780) 838-1646: Not all Cde…my argument is Consttn does not define what “parliament’s primary law making power is” and also does not prohibit use of SI to amend principal Act
19/11/2016, 10:58 PM – +1 (780) 838-1646: Not at all*
19/11/2016, 10:59 PM – +1 (780) 838-1646: Gazette says the Bond Notes Law came into effect on Oct 31 2016
19/11/2016, 11:00 PM – +1 (780) 838-1646: Going to Parly after invoking PPTMA is what the PPTMA says president shld do
19/11/2016, 11:01 PM – +1 (780) 838-1646: Cde Ras: u are not explaining hw the process is illegal. Why are u ignorinf the fact that the Consttn does not prohibit SI from amending a principal Act of Parly?
20/11/2016, 3:34 AM – +263 77 700 5959: It is not for Mahere to offer solutions. I understand she ain’t the Govt & she cannot just sit & fold her hands whilst the Executive trembles upon her rights. It does not need her to have a solution to challenge the Constitutionality of the conduct of the Executive. The Govt shld simply come wth a solution that is lawful.
20/11/2016, 3:35 AM – +263 77 700 5959: come up*
20/11/2016, 3:43 AM – +263 77 700 5959: 😳😳😳 With all due respect, I am really shocked to learn that we have people with this kind of thinking. The Constitution gives law making powers to the Legislature. Of course this power can be delegated under certain circumstances. But when the Executive is given power to amend an Act of Parliament it is as good as having no Legislature and it is as good as the Legislature abandoning it’s Constitutional duty.
20/11/2016, 3:44 AM – +263 77 514 6759: Besides the written text, there are other common law constitutional principles which bind us. The hierarchy of our laws. An s1 can not amend an act of parliament because an s1 is subordinate legislation. In the same vein an Act of parliament can not amend a constitutional provision. This is the set up of our law. However, because of politics now anything is possible for political expediency and survival.
20/11/2016, 3:46 AM – +263 77 700 5959: Simply because the Constitution does not expressly prohibit an s.i from amending an Act of Parliament does not mean that it does not provide for same.
20/11/2016, 3:46 AM – +263 77 514 6759: You are spot on. The executive can not arrogates themselves power more than that delegated to them.
20/11/2016, 3:48 AM – +263 77 700 5959: I agree.
20/11/2016, 5:08 AM – Shingai Ndoro: I’m sure you recall what I once said of our compatriot called @17808381646.
For some who don’t recall, I said he is an “ultra-statist” who don’t give a damn about constitutionality, legality and even decency as long it’s the state’s position he will support it no matter what.
He is very dangerous with public power. He enjoys and venerates its excesses and lack of restraint.
No offense intended.
20/11/2016, 6:11 AM – Mutumwa Mawere: All laws must have limiting provisions. The power to bridge between an emergency and the normal is conferred on the President. The limitation imposed on the President I so far as he can invoke the temporary powers cannot extend to amending preexisting laws that would have been processed by parliament.
The power to amend or repeal laws does not fall within the ambit of an emergency,
A spare wheel does not and cannot substitute a normal tyre that has not failed.
There cannot be any rational and legal justification for an emergency to permit usurping powers reserved for parliament by the executive lest the separation of powers doctrine is rendered redundant.
I am trying to understand Jones’ input and I am struggling to locate it within the realm of constitutionalism.
20/11/2016, 6:19 AM – Shingai Ndoro: Jones is never on the side of caution and fellow citizens are never his preferred side.
Check through all his contributions.
20/11/2016, 6:20 AM – +263 77 514 6759: That’s the point. A state of emergency must be inherent and as matter of logic and common sense in itself and discerned res ipso loquitor. It must not come out desperation due to malpractice and mismanagement
20/11/2016, 6:22 AM – +263 77 514 6759: You can’t steal people’s money and when they realise that there is no money you declare a state of emergency. Truly speaking tell me one reason which made the president to invoke the temporary powers over smm. Was that lawful.
20/11/2016, 6:22 AM – Doc 1873: How is the Constitution amended?
20/11/2016, 6:24 AM – +263 77 514 6759: The procedure is in the constuition. In fact it depends on what you want to amend because some provisions are entrenched and some are not
20/11/2016, 6:28 AM – +263 77 728 7847: My feeling is that Presidential powers should only be used when matter’s of security and wars want to arise in sy
20/11/2016, 6:30 AM – +263 77 728 7847: State of emergency
20/11/2016, 6:31 AM – +263 77 728 7847: Eg disasters
20/11/2016, 6:37 AM – +263 77 514 6759: Sure your are right
20/11/2016, 6:42 AM – Mutumwa Mawere: Your feeling is on point. It is the case that legislators are sovereign and their powers directly flow from the people.
The President similarly gets his powers from the people.
He has no senior powers to self help based on subjective factors by clothing himself with ordinarily reserved powers to deal with matters in the ordinary course of business that parliament is mandated to deal with.
The President is not a member of Parliament and has no power to add or subtract from the laws except assent or refer back to parliament laws that he may deem are unconstitutional.
He should be the last port of entry for bills to become law and therefore can’t then subordinate himself to law making or tinkering of laws when his mind and office are not equipped with the knowledge to that would permit substitution.
How would the President be occupied with matters like the indebtedness of SMM? How would such facts reach him in the ordinary course of business? If the indebtedness of all companies would be the business of a President, would the attendant chaos be healthy and constitutionally intended?
The President takes an oath to promote and protect the constitution and surely that power must be used sparingly in relation to parliament who may overstep their powers.
The need for checks and balances limits the law making mischief implied by Jones being part of any conceivable constitutionalism.
The President has no power to amend any Act but to refer any noted deficiencies to parliament.
20/11/2016, 6:43 AM – +263 77 728 7847: Temporal Presidential powers are supposted to only last 18 months only and should only work on state enterprise’s not private enterprises
20/11/2016, 6:44 AM – Doc 1873: Is it therefore true to say you cannot amend it through parliament?
20/11/2016, 6:44 AM – Mutumwa Mawere: Max 6 months
20/11/2016, 6:46 AM – +263 77 514 6759: It’s not true it requires some threshold only
20/11/2016, 6:50 AM – Doc 1873: Thank you because i had picked a sense that it was not possible.
20/11/2016, 6:53 AM – Mutumwa Mawere: In Executive Council Western Cape Legislature v President of Republic of South Africa27 the Constitutional Court held that while the legislature may not delegate plenary law-making powers to the executive, it may delegate subordinate law-making powers. The court thus confirmed reservation of plenary law making for the legislature and made it non-delegatable. This is because it is necessary for the effective law-making.
20/11/2016, 6:55 AM – +263 77 514 6759: That’s the point in law. Delegated powers normally is about regulations to add flesh to the provisions that are otherwise broad. Not to change anything
20/11/2016, 6:57 AM – Mutumwa Mawere: Delegation of legislative power to the executive
There is what we call ‘non delegation doctrine’. It forms part of separation of functions between the legislature and the executive. Simply put, it states that the power to make laws, which is the function that is vested with the legislature, should not be delegated excessively to the executive.32
It has been argued that this doctrine promotes democratic accountability and individual liberty, by ensuring that laws are made by those who are most directly accountable to the electorates and in accordance with a pre determined procedure that is deliberative in nature and which must facilitate public participation.33 If the legislators were entitled to delegate their law-making powers to another body that was not directly ac- countable to the electorate or subject to the same constraints, it is argued, these values could be compromised.34
The non-delegation doctrine also protects individual liberty, it is argued further, by dispersing the power to make law amongst legislators who disagree and who represent a wide range of different interests. It means that the coercive power of the law cannot be brought to bear on individuals unless a majority of legislators believed that the issue is important enough to be regulated by law and can come to an agreement on a relatively specific set of words.35
It is however rare to find the doctrine being applied strictly, due to lack of expertise or time on the part of the legislature to initiate and enact hundreds, if not thousands of technical rules commonly required for the effective implementation and re- gulation of most statutes. In addition, the dynamic nature of modern societies frequently requires far more rapid changes in the regulatory framework than slow and cumbersome legislative process. The slow and cumbersome legislative process, further- more, often makes it impractical for the legislature to enact the minor changes that most statutory schemes regularly require.36
The Constitutional Court had occasion to apply the doctrine of ‘non delegation’ in Executive Council, Western Cape Legislature v President of the Republic of South Africa.37 In this case the Western Cape provincial government applied for an order de- claring section 16A of the Local Government Transition Act38 (herein referred to as ‘LGTA’) to be unconstitutional and invalid. The provincial government based its application on the ground that section 16A, which provided that the president could amend the LGTA by publishing a Proclamation in the Government Gazette, infringed the interim Constitution.39 Section 37 provided that: ‘legislative authority of the Republic shall … vest in parliament, which shall have the power to make laws for the Republic in accordance with the Constitution’.
The Constitutional Court found that section 16A did infringe section 37 of the interim Constitution; and it was therefore de- clared unconstitutional and invalid.
In arriving at this conclusion, the majority of the court began its judgment by explaining that while the final Constitution grants Parliament the power to make laws, it does not expressly grant parliament the power to delegate any of its law-making power to the executive.
20/11/2016, 7:02 AM – Doc 1873: 👏🏿👏🏿👏🏿👏🏿
20/11/2016, 7:04 AM – Doc 1873: You are talking to me. This is real stuff now.
20/11/2016, 7:05 AM – Dziva Mawere added +27 84 320 8006
20/11/2016, 7:06 AM – Dziva Mawere removed +27 84 320 8006
20/11/2016, 7:06 AM – Dziva Mawere added +27 84 320 8006
20/11/2016, 7:14 AM – Dziva Mawere:
20/11/2016, 7:19 AM – +263 77 728 7847:
20/11/2016, 7:20 AM – +263 77 728 7847: Same as bond note s
20/11/2016, 7:20 AM – +263 77 728 7847: Once bitten twice shy
20/11/2016, 7:20 AM – +263 77 728 7847:
20/11/2016, 7:21 AM – +263 77 728 7847: You think its fair
20/11/2016, 7:22 AM – +263 77 728 7847: God not for one but for us all
20/11/2016, 7:22 AM – Dziva Mawere: Not once bitten. The list is too many to suggest that it can be limited to bond notes +one example.
The separation of powers doctrine and the morality informing it is rarely understood by the actors who must give it life.
20/11/2016, 7:23 AM – +263 77 728 7847: How many others affected
20/11/2016, 7:23 AM – Dziva Mawere: The constitution limits but the Executive operates as if it doesn’t. Executive arrogance or mischief.
20/11/2016, 7:23 AM – +263 77 728 7847: Its a shame
20/11/2016, 7:24 AM – Dziva Mawere: The train is full of carcases.
20/11/2016, 7:25 AM – Dziva Mawere: I think Magaisa among many tried to list but not comprehensively the substitution of parliament by the President and the redefinition of what an emergency is.
20/11/2016, 7:27 AM – Dziva Mawere: Shame is an understatement. More like tragic.
When a country is reduced to an animal farm, the cancer has no limits. Cash shortage is just one of many.
When power is concentrated, the danger is self evident.
20/11/2016, 7:29 AM – Dziva Mawere:
20/11/2016, 7:31 AM – Dziva Mawere:
20/11/2016, 7:33 AM – Eng Tatenda Zvingowanisei: It is amazing that the budget to prepare for the introduction of the bond notes might be equal to or even higher than the value of the notes to be introduced.
20/11/2016, 7:34 AM – Dziva Mawere:
20/11/2016, 7:36 AM – Dziva Mawere:
20/11/2016, 7:39 AM – Dziva Mawere:
20/11/2016, 8:06 AM – Doc 1873: That resonates with my thinking that if people be perceived to he ignorant you do not exploit them but rather you educate them neither do you say let sleeping dogs lie while you exploit them but act in good faith by building their capacity.
20/11/2016, 8:10 AM – +27 60 418 0115: True. Wish we had a subject on Active citizenship in primary/secondary school. It would go a long way in tranforming our nation.
20/11/2016, 8:10 AM – Shingai Ndoro: 👌🏿👍🏿👏🏿👏🏿👏🏿👏🏿
20/11/2016, 8:14 AM – Dziva Mawere: Wish is a unique word. It says a lot about the author’s beliefs. A lot has been done in the name of courage and beliefs. Wish always remains stationery and static.
Wish needs the mind and legs of its author because real change starts with the man in the mirror who always chooses to wait at a station for another person to suggest what is and should be self-evident that motion needs a party to manifest itself.
20/11/2016, 8:19 AM – +27 60 418 0115: Good point Mr Mawere. Thanks for pushing the author to create a mind and legs for this fantastic idea.
20/11/2016, 8:22 AM – Dziva Mawere: In the final analysis, no force is called for because change is starts in the mind of a solitary mind who then chooses to act on his or her beliefs and not necessarily to please anyone or cheat history.
20/11/2016, 8:23 AM – Eng Tatenda Zvingowanisei: I believe prisons gave birth to wishes
20/11/2016, 8:26 AM – Dziva Mawere: Isn’t it funny that wishing becomes a popular word in the affairs of the living leaving the dead to wonder why they exited.
We the living have the power. I like the comments from Hon Holder who appears to be the point person in Parliament to give a voice to our observations that the real threat to democracy is given birth to by the very people elected to promote it.
20/11/2016, 8:43 AM – +27 60 418 0115: So the Active citizenship subject can have the following modules: Civic leadership, Understanding our constitution, Human Rights 101, Active participation etc. If the more people in our nation would ask the same questions that I see on this group, it would be so difficult to take advantage of the “well educated” masses. If these seemingly complex matters are simplified and even explained in vernecular, we would create a politically intelligent population, and solve governance and corruption matters in our country.
20/11/2016, 8:44 AM – +27 84 320 8006: National Transformative Education.
20/11/2016, 8:46 AM – +27 60 418 0115: Correct!!
20/11/2016, 8:47 AM – +27 84 320 8006: Simplification is key to educating the masses
20/11/2016, 8:48 AM – Eng Tatenda Zvingowanisei: 👋🏾👋🏾👋🏾👋🏾👏🏾
20/11/2016, 8:48 AM – +27 84 320 8006: Without which people with the same intent can’t reconcile their paradigms
20/11/2016, 8:50 AM – Eng Tatenda Zvingowanisei: Very often we reduced to think that there is correlation between “big words” and substance… SPEAK TO COMMUNICATE!
20/11/2016, 8:50 AM – Dziva Mawere: You are on point. By admitting that little knowledge can spur movement, we all would decide on what the next step should be.
Before the menu, let us behave like true entrepreneurs or generals who have to fight a battle in the mind before engaging.
Can activism be taught? If so, how and by whom?
20/11/2016, 8:54 AM – +27 84 320 8006: I agree.Simplified teaching and Practical Engagement has to be backed by deep mental engagement at the highest level at the beginning that interogate matters to come up with a solid philosophy.
20/11/2016, 8:54 AM – Shingai Ndoro: Missing is the issues to do with the concept of active citizenship, public office charter, citizen sovereignty, holding public officers accountable, the difference between public and private sphere, participation in public squares, etc
20/11/2016, 8:55 AM – +27 84 320 8006: Powerful subjects
20/11/2016, 8:58 AM – Dziva Mawere: There are many who want their views to be private and that must be respected. How can any discourse in private be inspirational and forward leaning?
Where are the masters who are going to unpack the issues of the day like MLK, Mandela, Obama to give a face to activism without shadow boxing?
Can activism be taught or tools to analyse issues?
20/11/2016, 9:01 AM – +27 84 320 8006: I think those who want their views to be private can still contribute to a body of knowledge through the established institution. .
20/11/2016, 9:03 AM – Dziva Mawere: Imagine a private prisoner of conscience. Imagine an activist being afraid to express views he holds dear. Imagine an activist in the closet?
20/11/2016, 9:06 AM – +27 84 320 8006: At some stage one has to realize that the power of their views to be infused and embraced and transfered is accelerated by their conviction and willingness to become them.
20/11/2016, 9:07 AM – +27 84 320 8006: Self preservation is the enemy of progress ,growth and influence
20/11/2016, 9:11 AM – Dziva Mawere: Without Obama, then who would have been voted for? How many activists had theories about the impossibility of what is now history?
20/11/2016, 9:11 AM – +27 84 320 8006: Another non Obama
20/11/2016, 9:13 AM – Dziva Mawere: Indeed. If Trump remained a spectator of history, there would still be a President absent him.
20/11/2016, 9:16 AM – +27 84 320 8006: It is conviction that’s propels into activism.
20/11/2016, 9:20 AM – Dziva Mawere: Certainly not lectures.
20/11/2016, 9:21 AM – Tapiwa Chitambo: 👏🏿👏🏿👏🏿
20/11/2016, 9:21 AM – +263 77 301 1262: Keenly following…
20/11/2016, 9:23 AM – Tapiwa Chitambo: Chinamasa must be stopped. He is the author of most of these President’s abuse of the constitution.
20/11/2016, 9:23 AM – Dziva Mawere: When you choose not to follow but to be active agent of change, then you would have reduced the burden of a journey to a destination of your own dreams as well.
20/11/2016, 9:24 AM – Tapiwa Chitambo: Human Rights Campaign: Zimbabwean people request urgent international intervention – Sign the Petition!
20/11/2016, 9:26 AM – Dziva Mawere: Chinamasa is not the Minister of Justice or the President.
Have you heard Mnangagwa saying that the use of executive orders is a bad omen and practice?
Ask yourself why? Could it be that the morality of actors in government is different from the people who subscribe to the idea of constitutionalism?
20/11/2016, 9:27 AM – Dziva Mawere added +27 79 757 9933
20/11/2016, 9:28 AM – Tapiwa Chitambo: It obviously is or they are fatally blinkered or drunk by power to the extend they don’t care anymore. Its up to us to act on these abuses
20/11/2016, 9:29 AM – Dziva Mawere: Why externalize a problem that has its roots and branches in the domestic market.
20/11/2016, 9:29 AM – Shingai Ndoro: Locate “international”
20/11/2016, 9:30 AM – +263 77 301 1262: True MDM. However l am sure you are aware of what has been happening to activism in Zimbabwe. Genuine activists are not as visible as the mercenary activists. What is needed to have the right voices visible? What support can be given to such activists? Being in progressive groups like this one is one form of support… If were are serious about Activism, we must be serious in giving them the support they need…
20/11/2016, 9:31 AM – +263 77 301 1262: Begging for an invasion or any intervention the international Community deems fit…🙆🏽🙆🏽
20/11/2016, 9:33 AM – Dziva Mawere:
20/11/2016, 9:33 AM – Dziva Mawere:
20/11/2016, 9:34 AM – +27 60 418 0115: If entrepreneurship, business management, political science can be taught, surely activism is not an exception. Conviction without knowldge n tools is not very useful.
20/11/2016, 9:35 AM – Dziva Mawere:
20/11/2016, 9:36 AM – Dziva Mawere: Knowledge can be shared but not action based on conscience
20/11/2016, 9:37 AM – +27 84 320 8006: Education and training is key. .yet I have seen people who have learn entrepreneurship and business management who cannot run a tuckshop. It’s not all up to what you know or are resourced for but what are you willing to do about it….that’s the place of conviction!
20/11/2016, 9:38 AM – Dziva Mawere: 👋🏾👋🏾👋🏾👋🏾
20/11/2016, 9:38 AM – Tapiwa Chitambo: Zimbabwe to abolish lobola, men could claim refunds: Mnangagwa
Be the first to comment!
Vice President Emmerson Mnangagwa, who is also minister of Justice Legal and Parliamentary Affairs, says the government is in the process of drafting a law abolishing payment of lobola (bride price), a law under which men who are unhappy with their wives can demand a lobola refund. Mnangagwa told Zimbo Today.com in an exclusive interview in Harare that the upcoming law is a result pressure being brought to bear on government by women rights activists who want lobola to go as they see it as the root cause of imbalances between spouses.
“For many years, we have tried to ignore these calls, but we have realised that this is what women of Zimbabwe seem to want as part of equality… the argument is that lobola is the foundation of inequality in marriages… the woman comes in a junior partner because something would have been paid for her, so with lobola gone, it will be easy for spouses to treat each other as equals,” Mnangagwa explained. He added that under this upcoming law, which is still at the drafting stage, a husband who is unhappy with his wife would be free to approach his in-laws to demand a refund of whatever he would have paid in lobola even if the marriage still subsists.
“We are still at the stage of drafting the law and once the Bill is out, there would be nation-wide consultations so that members of the public can make their own inputs before it becomes a law. I have to emphasise that this is not our idea, but that of women rights organisations like Msasa Project, Women of Zimbabwe Arise, Zimbabwe Women’s Resource Centre and the Zimbabwe Women Lawyers Association, among others,” he added. Mnangagwa said that under the proposed law, upon divorce, a man is entitled to a full refund of what he would have paid as lobola.
“The Bill should be ready for public debate in the first quarter of 2017, that is when these organisations and all other interested parties will have their day in the court of public opinion so that the matter is settled once and for all. As Justice Minister, I can also tell you that our new Constitution is very democratic… it has a provision for a referendum to be called for when people cannot agree on an important issue like this,” the Vice President added. Mnangagwa said once the law comes into place, charging lobola will be treated as extortion, which is a criminal offence.
20/11/2016, 9:40 AM – Tapiwa Chitambo: This is the proper parliamentary procedure ??👆🏿👆🏿
20/11/2016, 9:40 AM – Dziva Mawere: Thanks.
20/11/2016, 9:41 AM – Madyira: I dont see the confusion here. Presidential Powers Temporary Measures Act is a 6 months provision. If parliament does not veto in favour of it. It seizes to be law. Thus the executive still depends on parliament to veto it.
20/11/2016, 9:41 AM – +260 97 7508519: Well well
20/11/2016, 9:43 AM – Dziva Mawere: The issue is when does the power to borrow law making powers arise.
20/11/2016, 9:44 AM – +263 77 301 1262: Those with the conviction still require some capacity building training. Can you compare a student activist with a student leadership background and one who doesn’t have that background. They are very different.
20/11/2016, 9:45 AM – Dziva Mawere: This platform is to share ideas, knowledge, experiences and insights. However, the next step is a choice that has to be made.
20/11/2016, 9:50 AM – Madyira: I think the real question is at whose discretion is it applied parliament or the Execitive?
20/11/2016, 9:51 AM – Shingai Ndoro: I expect you to be more discerning than this.
ZimToday is a spoof site.
20/11/2016, 9:51 AM – +263 77 301 1262: 👌
20/11/2016, 9:53 AM – Dziva Mawere: All are questions and I am not sure whether constitutionalism can empower a President to wonder around and engage in actions that render the separation of powers redundant?
20/11/2016, 9:55 AM – Madyira: Constitutions are defined by people. So PPTMA can be constitutional as long as people prefer that set up. The question then comes what did the people say in 2012 referendum
20/11/2016, 9:56 AM – Madyira: Did they agree to the continued use of it or not?
20/11/2016, 9:57 AM – Dziva Mawere: It is constitutional to the extent that it is the law of the land and that the primary law making powers remain entrenched with parliament.
20/11/2016, 10:02 AM – Madyira: My understanding is the PPTMA is constitutional and should be applied in emergency cases eg natural disasters, declaration of war on other states, declaration of state of emergency etc.
This will then lead us to ask at whose call should it be applied. Previous the Head of State could declare War without Parliament veto but now i think it was changef to have some of the excess of PPTMA be ratified by Parliament as in the declaration of war. Others not too sure.
20/11/2016, 10:04 AM – Shingai Ndoro: The current PPTMA is unconstitutional!
20/11/2016, 10:04 AM – Madyira: As with bond note i am not sure what the emegerncy is?
20/11/2016, 10:04 AM – Madyira: Explain yr view
20/11/2016, 10:06 AM – Madyira: I understanding is Zim is currently operating on the 18th or 19th ammended Lancaster House constitution and partly on the 2013 constitution which the govt has tactfully delayed in its implimentation.
20/11/2016, 10:07 AM – +263 77 700 5959: What do you mean when you say people..? Only the Court is clothed with the powers to Interpret the law including the supreme law of the land. In my respectful and considered opinion, your contribution is a good example of a wrong proposition of law.
20/11/2016, 10:07 AM – Madyira: Although the principle of PPTMA is enshrined in both constitutions
20/11/2016, 10:07 AM – +263 77 234 2053: Emergency situations are covered adequately under the state of emergency powers. PPMTA is unconstitutional as clearly articulated by some comrades here
20/11/2016, 10:08 AM – Madyira: Defined means made by people whose application is the courts and all other legal procedures.
20/11/2016, 10:09 AM – Shingai Ndoro:
20/11/2016, 10:10 AM – Madyira: The doctrine of seperation between the Executive and the Law making board is a principle which not all countries adopts. It might be ideal but the fact that its what is best doesnot necessarily mean its what people subscribed to.
20/11/2016, 10:12 AM – Shingai Ndoro: Anyone with the full copy of the PPTMA to share here?
20/11/2016, 10:12 AM – Madyira: So who is the head of Govt. U bring points that support my view.
20/11/2016, 10:13 AM – Shingai Ndoro: What is the state of emergency?
What warrants it to be declared as such?
20/11/2016, 10:13 AM – Madyira: Besides this is a clause about state of emergency not itself about Presidential powers.
20/11/2016, 10:14 AM – +263 77 700 5959: What people said in 2012 is irrelevant in determining the Constitutionality or otherwise of the PPTMA. What is important now is how the Court will interpret that which the people say is the Constitution. So you cannot necessarily base your opinion on the validity of the PPTMA on what people said but on the meaning given to the provisions of the Constitution by the court. That is why we challenge the Constitutionality of Acts of Parliament in court.
20/11/2016, 10:16 AM – Madyira: The topic is not about state of emnergency, cases arising or not. What it constitute or not. Its about application of PPTMA which those who believe in the doctrine os seperate powers claim its illegal.
I am questioning the basic why people say its illegal when they ratified an Executive President in the last constitution.
20/11/2016, 10:17 AM – Shingai Ndoro: It’s very important we use the constitution to define what is a state if emergency.
20/11/2016, 10:20 AM – Madyira: Thats why l am asking at whose call. PPTMA i said i believe should be used in state of emergencies but does there law restrict it to that? PPTMA was reduced in terms of its application that the President cant apply certain things about it without parliament approval implying it is constitutional to use ans apply it.
20/11/2016, 10:21 AM – Madyira: The 2013 constitution only put a ceiling to its application not the bare minimum.
20/11/2016, 10:23 AM – Madyira: Regardless of that the country is operating on the 18th or 19th ammendment to the lancaster house constitution and not the 2013 constitution thus in terms of legality it is VERY LEGAL.
20/11/2016, 10:23 AM – Shingai Ndoro: Does the 2013 constitution define what is a state of emergency?
20/11/2016, 10:23 AM – +263 77 234 2053: Where in the constitution is the PPTMA legalised? Let’s talk specific sections
20/11/2016, 10:29 AM – Madyira: Emergency cases doesnot necessarily translate to state of emergency. There is a big difference. A big one
20/11/2016, 10:30 AM – Dziva Mawere: The state of emergency is only to do with a spare wheel. When can one use it?
20/11/2016, 10:30 AM – +263 77 234 2053: Kindly answer my question Mavhu
20/11/2016, 10:35 AM – Madyira: The term State of Emergency is when a country because of immediate emergencies chooses to govern the country without necessarily following the constitution. In other words the constituion is suspended.
Whereas not all emergency cases require the state to temporarily suspend the constitution. Eg Natural disasters earthquake floods etc.
20/11/2016, 10:39 AM – Dziva Mawere: Is that the operation of the constitution is suspended?
20/11/2016, 10:42 AM – Madyira: Dziva State of Emergency is suspending the constitution.
There is a world of difference to use of PPTMA on emergency cases and declaration of a State of Emergency.
People should understand that the declaration of State of Emergency is one of the functions of the President. What i need to research is in the 2013 constitution does the President need Parliament Approval of Declaration of State of Emergency.
20/11/2016, 10:44 AM – Madyira: Although the President can in emergent cases declare the State of Emergency.
Thus State of Emergency can be covered under PPTMA as one of the immediate emergent cases but not limited to it.
20/11/2016, 10:47 AM – Dziva Mawere: Does delegation constitute abdication?
20/11/2016, 10:53 AM – Madyira: Yes it is suspended
20/11/2016, 10:56 AM – Dziva Mawere: I don’t believe so.
20/11/2016, 11:01 AM – Dziva Mawere: I say so because the state of emergency is provided for in the constitution with the proviso that everyone understands what gives birth to it and how legislative powers can be temporarily used to cover such unplanned or unplannable occurrences.
20/11/2016, 11:11 AM – Madyira: Research widely.
20/11/2016, 11:12 AM – Dziva Mawere: Perhaps you help unpack
20/11/2016, 11:20 AM – Madyira: State of Emergency was declared in Zim during the Gukurahundi Era.
The phrase means – A situation of national danger or disaster in which a Government suspends normal constitutional procedures in order to regain control.
20/11/2016, 11:22 AM – Madyira: It is not only covered under Presidential Powers Temporary Measures Act. It is enshrined in the constitution and other Executive powers. Thus why i have phrased that emergency cases does not in itself translate to State of Emergency. Big difference.
20/11/2016, 11:23 AM – Dziva Mawere: You can only suspend that which is not provided for. The President is permitted in such situations to bridge any legality gap
20/11/2016, 11:25 AM – Madyira: So do we agree that State of Emergency is suspending the constitution?
20/11/2016, 11:27 AM – Dziva Mawere: No. The constitution still operates allbeit allowing the President to borrow legislative powers.
20/11/2016, 11:32 AM – Eng Tatenda Zvingowanisei: Seems like you talking of the same thing here. Its just an issue of semantics
20/11/2016, 11:33 AM – Madyira: You limiting the word State of Emergency to Presidential Powers Temporary Measures Act.
20/11/2016, 11:34 AM – Madyira: Dziva is trying to be philosophical (sp)
20/11/2016, 11:35 AM – Dziva Mawere: What other instances would the state of emergency be relevant in so far as the role of parliament?
20/11/2016, 11:36 AM – Madyira: He knows what a State of Emergency is and that when the President uses PPTMA is like he said borrowing legislative power but not a State of Emergency
20/11/2016, 11:38 AM – Madyira: PPTMA is used in terms of time limits
20/11/2016, 11:39 AM – Madyira: Normal when there are time constrains or when the parliament is equal divided
20/11/2016, 11:45 AM – Dziva Mawere: What precipitate the use if no urgency is inherent? Are you suggesting that state of emergency is devoid of urgency?
20/11/2016, 11:59 AM – Madyira: What i can not discuss is whether it is being abused or not.
But happy to illustrate that its use is very constitutional and relevant to both the ammended Lancaster constitution and the 2013 constitution.
Whereas there are believers who for one reason or another think or thought that its is unconstitutional
20/11/2016, 12:04 PM – Dziva Mawere: Agreed
20/11/2016, 12:14 PM – Doc 1873: State of emergency exist in many Constitutions and generally agreed to be used once the state security is under threat of attack from terrorist and other similar acts.
20/11/2016, 12:24 PM – Dziva Mawere: ✅
20/11/2016, 12:25 PM – +263 77 700 5959: I think to determine the validity of the PPTMA reference must be made to the provisions of the Constitution. I still insist that the PPTMA is unconstitutional because it allows the President to amend an Act of Parliament.
Section 116 of the Constitution of Zimbabwe Amendment No. 20 provides as follows: The Legislature of Zimbabwe consists of Parliament and the President *acting in accordance with this Chapter*. underlining mine for emphasis sake.
Section 117 provides for the nature and extend of legislative authority. It provides as follows, inter alia, the legislative authority confers on the Legislature the power to confer subordinate legislative powers upon another body or authority *in accordance with section 134* underlining mine again for emphasis sake.
Section 131 provides for the procedures to be adopted by the Legislature when enacting Acts of Parliament. It provides as follows: Parliament’s legislative authority is exercised through the enactment of Acts of Parliament. It defines an Act of Parliament as follows: a Bill which has been presented in and passed by both Houses of Parliament and assented to by the President in *accordance with this Constitution*.
The promulgation of statutory instruments or subsidiary legislation is regulated by section 134 which provides as follows:
Parliament may in an Act of Parliament delegate power to make statutory instrument within the scope of and the purpose laid out in that Act *but, Parliament’s primary law-making power must not be delegated* underlining mine again for emphasis sake.
It further provides that Statutory instruments must be consistent with the Act of Parliament under which they are made.
Now I will analyse the provisions above herein to determine whether, in my learned opinion, it is Constitutional for the President to amend an Act of Parliament through PPTMA.
Firstly an S.I promulgated by the President pursuant to the powers granted to him interms of PPTMA is not a Bill as contemplated by section 131. So the presentation of that S.I by the President to Parliament after promulgation does not elevate it to the status of a Bill which must be presented to both the Senate and House of Assembly before it can transform into an Act of Parliament.
By allowing the President to amend an Act of Parliament the PPTMA contravenes the provisions of Section 134 supra which provides that Parliament’s primary law making power must not be delegated. One must also be alive to the fact that this provision is peremptory as signified by the word *must*. It allows of no derogation.
So to my mind if a whole President by an S.I amends an Act of Parliament he will in fact be making an Act of Parliament. The PPTMA provides for that to be done without following the procedures laid out in the Constitution and to that extend it is void and null to the extent of its incisistency with provisions of the Constitution.
so Mavhu, with all due respect, get your facts right before coming here and misleading us.
20/11/2016, 12:30 PM – Doc 1873: Its use however in other circumstances means use against the sovereign and that is the people. I think tha5 is more often than jot misguided and mischievous and it is born out of the understanding that we should operate within law. All law is born out of necessity but follows channels than to be brought in via the back door as if to cure a miraculous disease that will never resurface but could mutate if left unchecked to wipe out people from face of the earth.
20/11/2016, 12:31 PM – Dziva Mawere: You are on point. The question is whether given the limitation imposed by s134 of the Constitution, the President is clothed with the authority to alter an Act of Parliament which Act he plays no part in creating.
His role is to assent a bill. The law making function is prescribed. It cannot go beyond the creation of that which doesnt exist or that which could not have been contemplated given the circumstances under which the power to temporarily legislate arises and is invoked.
20/11/2016, 12:33 PM – Madyira: Please research on the functions and roles of an Execitive President. I think people accepted one without clearly understanding implications of the term Executive President
20/11/2016, 12:33 PM – Dziva Mawere: What is a President in a constitutional democracy? What animal is this?
20/11/2016, 12:34 PM – Doc 1873: That is sober Sir, i like your seamless analysis. Clean cut Sir. You qualify squared yo be referenced as learned.👏🏿👏🏿👏🏿👏🏿👏🏿👏🏿
20/11/2016, 12:36 PM – Doc 1873: I think you mean executive President as thought of by Mr Mugabe in 1987 but not in a constitutional democracy. The two are continents apart.
20/11/2016, 12:37 PM – Dziva Mawere: Let us study this animal called the President. Is it contemplated that in giving life to a president one is effectively giving life to a surrogate law maker?
20/11/2016, 12:37 PM – Madyira: The only thing that changed is his power to appoint Members of Parliament and declare War as in DRC but else is the same.
20/11/2016, 12:39 PM – Madyira: During the course of coming weeks will bring evidence from the constitution.
20/11/2016, 12:41 PM – +263 77 700 5959: I take it that by asking me to do a research you are asking me read the provisions of the Constitution on the functions and roles of an Executive President. I will proceed to do so to see if in, my opinion,it lends support to your submissions.
20/11/2016, 12:42 PM – +263 77 700 5959: thanks
20/11/2016, 12:42 PM – Dziva Mawere: Do these include discretion to alter or vary a law that has passed through what should be a broad based parliament?
What would constitute broad daylight theft of powers or fraudulent power conveyancing than the absurdity of a President having the power that he doesn’t in respect of primary laws that he can either reject or assent to without any variation not involving parliament as the sole and primary actor?
20/11/2016, 12:50 PM – Doc 1873: If one wants to make laws they would rather choose to be an MP than a President because to want more is to desire all functions to accrue to one person and that is an absurdity and it is illogical.
20/11/2016, 1:30 PM – Dziva Mawere: The animal in humanity has the propensity to write self-serving laws and call that democracy.
Statecraft is an art that requires no qualifications but when in the state the amnesia about the abuse of public trust is endemic unless controlled by the vigilance of the citizens.
Does Mugabe know of the limits of public power? If he doesn’t, who is to tell him?
Can you trust any of his Ministers to tell him?
What about the judges appointed by him?
What about the victims? Can the victim be expected to know what constitutes statecraft excellence?
20/11/2016, 1:32 PM – +263 77 700 5959: I have done my research and I have gone through the relevant provisions of the Constitution. Section 90 provides for the duties of the President and section 110 provides for the Powers of the President.
Section 113 speaks on States of public emergency. The relevant provision is subsection 1 which provides as follows :
The President may by proclamation in the Gazette declare that a state of emergency exist in the whole or any part of Zimbabwe.
From my own understanding of the above provision the President can only declare a state of public emergency by proclamation and not by an s.i in terms of the PPTMA.
So even assuming that you are correct that in cases of Public emergency the President may amend an Act of Parliament or suspend the applicability of the Constitution your argument still falls away on the basis that a declaration of state of emergency is by proclamation published in the Govt Gazette and not through the PPTMA.
the net effect of this in my opinion is that the validity of PPTMA cannot be justified by the fact that the President is empowered to declare a state of public emergency in Zimbabwe or any part thereof.
the PPTMA is unconstitutional in my opinion.
20/11/2016, 1:37 PM – Dziva Mawere: Are you suggesting that the use of executive orders unconstitutional or the arbitrary use of discretion in respect of non emergency issues?
20/11/2016, 1:47 PM – +263 77 700 5959: I was considering the Constitutionality of the PPTMA. Mavhu seems to have suggested that the said Act is valid and Constitutional and one of the reasons advanced by him in support thereof was that the President is empowered by the Constitution to declare state of Public emergency& in the exercise of that power he can amend an Act of Parliament or suspend the applicability of the Constitution. So in response to this I am simply saying: he cannot justify the validity of the PPTMA simply because it is not the instrument through which the President can declare a state of emergency.
20/11/2016, 1:48 PM – Mutumwa Mawere: Agreed