- [3:35 AM, 11/20/2016] Flash: 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.
- [3:35 AM, 11/20/2016] Flash: come up*
- [3:43 AM, 11/20/2016] Flash: 😳😳😳 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.
- [3:44 AM, 11/20/2016] Leopold Mudisi: Besides the written text, there are other common law constitutional principles which bind us. The hierarchy of our laws. An s1 cannot amend an act of parliament because an s1 is subordinate legislation. In the same vein an Act of parliament cannot amend a constitutional provision. This is the setup of our law. However, because of politics now anything is possible for political expediency and survival.
- [3:46 AM, 11/20/2016] Flash: 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.
- [3:47 AM, 11/20/2016] Leopold Mudisi: You are spot on. The executive cannot arrogates themselves power more than that delegated to them.
- [3:49 AM, 11/20/2016] Flash: I agree.
- [5:08 AM, 11/20/2016] Sovereign Heru: I’m sure you recall what I once said of our compatriot called @jnsmusara.
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.
- [6:11 AM, 11/20/2016] M 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 pre-existing 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.
- [6:19 AM, 11/20/2016] Sovereign Heru: Jones is never on the side of caution and fellow citizens are never his preferred side.
Check through all his contributions.
- [6:20 AM, 11/20/2016] Leopold Mudisi: 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
- [6:22 AM, 11/20/2016] Leopold Mudisi: 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.
- [6:22 AM, 11/20/2016] Dr Vusumuzi Sibbs: How is the Constitution amended?
- [6:24 AM, 11/20/2016] Leopold Mudisi: 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
- [6:29 AM, 11/20/2016] John Holder: My feeling is that Presidential powers should only be used when matter’s of security and wars want to arise in sy
- [6:30 AM, 11/20/2016] John Holder: State of emergency
- [6:31 AM, 11/20/2016] John Holder: Eg disasters
- [6:38 AM, 11/20/2016] Leopold Mudisi: Sure your are right
- [6:42 AM, 11/20/2016] M 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.
- [6:43 AM, 11/20/2016] John Holder: Temporal Presidential powers are supposted to only last 18 months only and should only work on state enterprise’s not private enterprises
- [6:44 AM, 11/20/2016] Dr Vusumuzi Sibbs: Is it therefore true to say you cannot amend it through parliament?
- [6:44 AM, 11/20/2016] M Mawere: Max 6 months
- [6:47 AM, 11/20/2016] Leopold Mudisi: It’s not true it requires some threshold only
- [6:50 AM, 11/20/2016] Dr Vusumuzi Sibbs: Thank you because i had picked a sense that it was not possible.
- [6:53 AM, 11/20/2016] M 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.
- [6:55 AM, 11/20/2016] Leopold Mudisi: 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
- [6:57 AM, 11/20/2016] M 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.
- [7:02 AM, 11/20/2016] Dr Vusumuzi Sibbs: 👏🏿👏🏿👏🏿👏🏿
- [7:04 AM, 11/20/2016] Dr Vusumuzi Sibbs: You are talking to me. This is real stuff now.
- [7:20 AM, 11/20/2016] John Holder: Same as bond note s
- [7:20 AM, 11/20/2016] John Holder: Once bitten twice shy
- [7:21 AM, 11/20/2016] John Holder: You think its fair
- [7:22 AM, 11/20/2016] John Holder: God not for one but for us all
- [7:22 AM, 11/20/2016] MD 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.
- [7:23 AM, 11/20/2016] John Holder: How many others affected
- [7:23 AM, 11/20/2016] MD Mawere: The constitution limits but the Executive operates as if it doesn’t. Executive arrogance or mischief.
- [7:23 AM, 11/20/2016] John Holder: Its a shame
- [7:24 AM, 11/20/2016] MD Mawere: The train is full of carcases.
- [7:25 AM, 11/20/2016] MD 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.
- [7:27 AM, 11/20/2016] MD 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.
- [7:33 AM, 11/20/2016] +263 77 587 5828: 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.
- [8:06 AM, 11/20/2016] Dr Vusumuzi Sibbs: 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.
- [8:10 AM, 11/20/2016] +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.
- [8:10 AM, 11/20/2016] Sovereign Heru: 👌🏿👍🏿👏🏿👏🏿👏🏿👏🏿
- [8:14 AM, 11/20/2016] MD 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.
- [8:19 AM, 11/20/2016] +27 60 418 0115: Good point Mr Mawere. Thanks for pushing the author to create a mind and legs for this fantastic idea.
- [8:22 AM, 11/20/2016] MD 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.
- [8:23 AM, 11/20/2016] +263 77 587 5828: I believe prisons gave birth to wishes
- [8:26 AM, 11/20/2016] MD 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.
- [8:43 AM, 11/20/2016] +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.
- [8:45 AM, 11/20/2016] +27 84 320 8006: National Transformative Education.
- [8:46 AM, 11/20/2016] +27 60 418 0115: Correct!!
- [8:47 AM, 11/20/2016] +27 84 320 8006: Simplification is key to educating the masses
- [8:48 AM, 11/20/2016] +263 77 587 5828: 👋🏾👋🏾👋🏾👋🏾👏🏾
- [8:48 AM, 11/20/2016] +27 84 320 8006: Without which people with the same intent can’t reconcile their paradigms
- [8:50 AM, 11/20/2016] +263 77 587 5828: Very often we reduced to think that there is correlation between “big words” and substance… SPEAK TO COMMUNICATE!
- [8:50 AM, 11/20/2016] MD 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?
- [8:54 AM, 11/20/2016] +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.
- [8:54 AM, 11/20/2016] Sovereign Heru: 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
- [8:55 AM, 11/20/2016] +27 84 320 8006: Powerful subjects
- [8:58 AM, 11/20/2016] MD 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?
- [9:01 AM, 11/20/2016] +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. .
- [9:03 AM, 11/20/2016] MD Mawere: Imagine a private prisoner of conscience. Imagine an activist being afraid to express views he holds dear. Imagine an activist in the closet?
- [9:07 AM, 11/20/2016] +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.
- [9:07 AM, 11/20/2016] +27 84 320 8006: Self preservation is the enemy of progress ,growth and influence
- [9:11 AM, 11/20/2016] MD Mawere: Without Obama, then who would have been voted for? How many activists had theories about the impossibility of what is now history?
- [9:11 AM, 11/20/2016] +27 84 320 8006: Another non Obama
- [9:13 AM, 11/20/2016] MD Mawere: Indeed. If Trump remained a spectator of history, there would still be a President absent him.
- [9:16 AM, 11/20/2016] +27 84 320 8006: It is conviction that’s propels into activism.
- [9:20 AM, 11/20/2016] MD Mawere: Certainly not lectures.
- [9:21 AM, 11/20/2016] Tapuwa Chitambo: 👏🏿👏🏿👏🏿
- [9:22 AM, 11/20/2016] +263 77 301 1262: Keenly following…
- [9:23 AM, 11/20/2016] Tapuwa Chitambo: Chinamasa must be stopped. He is the author of most of these President’s abuse of the constitution.
- [9:23 AM, 11/20/2016] MD 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.
- [9:24 AM, 11/20/2016] Tapuwa Chitambo: Human Rights Campaign: Zimbabwean people request urgent international intervention – Sign the Petition!
- [9:26 AM, 11/20/2016] MD 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?
- [9:29 AM, 11/20/2016] Tapuwa 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
- [9:29 AM, 11/20/2016] MD Mawere: Why externalize a problem that has its roots and branches in the domestic market.
- [9:29 AM, 11/20/2016] Sovereign Heru: Locate “international”
- [9:30 AM, 11/20/2016] +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…
- [9:31 AM, 11/20/2016] +263 77 301 1262: Begging for an invasion or any intervention the international Community deems fit…🙆🏽🙆🏽
- [9:34 AM, 11/20/2016] +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.
- [9:36 AM, 11/20/2016] MD Mawere: Knowledge can be shared but not action based on conscience
- [9:37 AM, 11/20/2016] +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!
- [9:38 AM, 11/20/2016] MD Mawere: 👋🏾👋🏾👋🏾👋🏾
- [9:38 AM, 11/20/2016] Tapuwa Chitambo: Zimbabwe to abolish lobola, men could claim refunds: Mnangagwa
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.
- [9:40 AM, 11/20/2016] Tapuwa Chitambo: This is the proper parliamentary procedure ??👆🏿👆🏿
- [9:40 AM, 11/20/2016] MD Mawere: Thanks.
- [9:41 AM, 11/20/2016] +27 78 202 5720: 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.
- [9:41 AM, 11/20/2016] +260 97 7508519: Well well
- [9:43 AM, 11/20/2016] MD Mawere: The issue is when does the power to borrow law making powers arise.
- [9:44 AM, 11/20/2016] +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.
- [9:45 AM, 11/20/2016] MD Mawere: This platform is to share ideas, knowledge, experiences and insights. However, the next step is a choice that has to be made.
- [9:51 AM, 11/20/2016] +27 78 202 5720: I think the real question is at whose discretion is it applied parliament or the Execitive?
- [9:51 AM, 11/20/2016] Sovereign Heru: I expect you to be more discerning than this.
ZimToday is a spoof site.
- [9:51 AM, 11/20/2016] +263 77 301 1262: 👌
- [9:53 AM, 11/20/2016] MD 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?
- [9:55 AM, 11/20/2016] +27 78 202 5720: 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
- [9:56 AM, 11/20/2016] +27 78 202 5720: Did they agree to the continued use of it or not?
- [9:57 AM, 11/20/2016] MD 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.
- [10:02 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:04 AM, 11/20/2016] Sovereign Heru: The current PPTMA is unconstitutional!
- [10:04 AM, 11/20/2016] +27 78 202 5720: As with bond note i am not sure what the emegerncy is?
- [10:04 AM, 11/20/2016] +27 78 202 5720: Explain yr view
- [10:06 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:07 AM, 11/20/2016] Flash: 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.
- [10:07 AM, 11/20/2016] +27 78 202 5720: Although the principle of PPTMA is enshrined in both constitutions
- [10:07 AM, 11/20/2016] +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
- [10:08 AM, 11/20/2016] +27 78 202 5720: Defined means made by people whose application is the courts and all other legal procedures.
- [10:10 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:12 AM, 11/20/2016] Sovereign Heru: Anyone with the full copy of the PPTMA to share here?
- [10:12 AM, 11/20/2016] +27 78 202 5720: So who is the head of Govt. U bring points that support my view.
- [10:13 AM, 11/20/2016] Sovereign Heru: What is the state of emergency?
What warrants it to be declared as such?
- [10:13 AM, 11/20/2016] +27 78 202 5720: Besides this is a clause about state of emergency not itself about Presidential powers.
- [10:14 AM, 11/20/2016] Flash: 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.
- [10:16 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:17 AM, 11/20/2016] Sovereign Heru: It’s very important we use the constitution to define what is a state if emergency.
- [10:20 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:21 AM, 11/20/2016] +27 78 202 5720: The 2013 constitution only put a ceiling to its application not the bare minimum.
- [10:23 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:23 AM, 11/20/2016] Sovereign Heru: Does the 2013 constitution define what is a state of emergency?
- [10:23 AM, 11/20/2016] +263 77 234 2053: Where in the constitution is the PPTMA legalised? Let’s talk specific sections
- [10:29 AM, 11/20/2016] +27 78 202 5720: Emergency cases doesnot necessarily translate to state of emergency. There is a big difference. A big one
- [10:30 AM, 11/20/2016] MD Mawere: The state of emergency is only to do with a spare wheel. When can one use it?
- [10:30 AM, 11/20/2016] +263 77 234 2053: Kindly answer my question Mavhu
- [10:35 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:39 AM, 11/20/2016] MD Mawere: Is that the operation of the constitution is suspended?
- [10:42 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:44 AM, 11/20/2016] +27 78 202 5720: 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.
- [10:47 AM, 11/20/2016] MD Mawere: Does delegation constitute abdication?
- [10:53 AM, 11/20/2016] +27 78 202 5720: Yes it is suspended
- [10:56 AM, 11/20/2016] MD Mawere: I don’t believe so.
- [11:01 AM, 11/20/2016] MD 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.
- [11:11 AM, 11/20/2016] +27 78 202 5720: Research widely.
- [11:12 AM, 11/20/2016] MD Mawere: Perhaps you help unpack
- [11:20 AM, 11/20/2016] +27 78 202 5720: 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.
- [11:22 AM, 11/20/2016] +27 78 202 5720: 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.
- [11:23 AM, 11/20/2016] MD Mawere: You can only suspend that which is not provided for. The President is permitted in such situations to bridge any legality gap
- [11:25 AM, 11/20/2016] +27 78 202 5720: So do we agree that State of Emergency is suspending the constitution?
- [11:27 AM, 11/20/2016] MD Mawere: No. The constitution still operates allbeit allowing the President to borrow legislative powers.
- [11:32 AM, 11/20/2016] +263 77 587 5828: Seems like you talking of the same thing here. Its just an issue of semantics
- [11:33 AM, 11/20/2016] +27 78 202 5720: You limiting the word State of Emergency to Presidential Powers Temporary Measures Act.
- [11:34 AM, 11/20/2016] +27 78 202 5720: Dziva is trying to be philosophical (sp)
- [11:35 AM, 11/20/2016] MD Mawere: What other instances would the state of emergency be relevant in so far as the role of parliament?
- [11:36 AM, 11/20/2016] +27 78 202 5720: 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
- [11:39 AM, 11/20/2016] +27 78 202 5720: PPTMA is used in terms of time limits
- [11:40 AM, 11/20/2016] +27 78 202 5720: Normal when there are time constrains or when the parliament is equal divided
- [11:45 AM, 11/20/2016] MD Mawere: What precipitate the use if no urgency is inherent? Are you suggesting that state of emergency is devoid of urgency?
- [11:59 AM, 11/20/2016] +27 78 202 5720: 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
- [12:04 PM, 11/20/2016] MD Mawere: Agreed
- [12:14 PM, 11/20/2016] Dr Vusumuzi Sibbs: 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.
- [12:24 PM, 11/20/2016] MD Mawere: ✅
- [12:25 PM, 11/20/2016] Flash: 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.
- [12:30 PM, 11/20/2016] Dr Vusumuzi Sibbs: 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.
- [12:31 PM, 11/20/2016] MD 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.
- [12:33 PM, 11/20/2016] +27 78 202 5720: 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
- [12:33 PM, 11/20/2016] MD Mawere: What is a President in a constitutional democracy? What animal is this?
- [12:34 PM, 11/20/2016] Dr Vusumuzi Sibbs: That is sober Sir, i like your seamless analysis. Clean cut Sir. You qualify squared yo be referenced as learned.👏🏿👏🏿👏🏿👏🏿👏🏿👏🏿
- [12:36 PM, 11/20/2016] Dr Vusumuzi Sibbs: 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.
- [12:37 PM, 11/20/2016] MD 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?
- [12:37 PM, 11/20/2016] +27 78 202 5720: The only thing that changed is his power to appoint Members of Parliament and declare War as in DRC but else is the same.
- [12:39 PM, 11/20/2016] +27 78 202 5720: During the course of coming weeks will bring evidence from the constitution.
- [12:41 PM, 11/20/2016] Flash: 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.
- [12:42 PM, 11/20/2016] Flash: thanks
- [12:42 PM, 11/20/2016] MD 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?
- [12:50 PM, 11/20/2016] Dr Vusumuzi Sibbs: 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.
- [1:31 PM, 11/20/2016] MD 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?
- [1:32 PM, 11/20/2016] Flash: 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.
- [1:37 PM, 11/20/2016] MD Mawere: Are you suggesting that the use of executive orders unconstitutional or the arbitrary use of discretion in respect of non emergency issues?
- [1:47 PM, 11/20/2016] Flash: 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.
- [1:48 PM, 11/20/2016] M Mawere: Agreed
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- [10:45 AM, 11/21/2016] MD Mawere: https://smezim.com/2016/11/14/petrotrade-publishes-comical-financials-amg-global-found-wanting/
- [3:39 PM, 11/21/2016] +263 77 496 8850: 2 Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.
- [3:40 PM, 11/21/2016] +263 77 496 8850: Mavhu………..l would first refer you to section 2 of the zim constitution…..what does it entail …what is its relationship with all other laws…..
- [3:42 PM, 11/21/2016] +263 77 496 8850: section 113……(7) The Constitutional Court, on the application of any interested person, may determine the validity of—
(a) a declaration of a state of public emergency;
(b) any extension of a declaration of a state of public emergency.
(8) Any court may determine the validity of any legislation enacted, or other action taken, in consequence of a declaration of a state of public emergency.
- [3:43 PM, 11/21/2016] +263 77 496 8850: then……..is the constitution is suspended………on what basis would the constitutional court sit to determine the validty of the PPTMA …using what and which threshold within which the PPTMA must fall within….if not the constitution itself
- [3:44 PM, 11/21/2016] Adv. Thuto Mavula: ☝🏾Law
- [4:27 PM, 11/21/2016] MD Mawere: ✅
- [5:22 PM, 11/21/2016] Flash: I respectfully associate myself with these views….
- [5:38 PM, 11/21/2016] +263 77 587 5828: Loud and clear