Performing democracy, abusive constitutionalism and rule by decree

Democracy, without substance, can be but a mere label. Beyond self-proclamation that Zimbabwe is a democratic republic, democracy is substantive more than formative. A country can have systems and institutions and all manner and forms of watchdogs and oversight. But if these exist in form without substance, or are manipulated or ignored, it’s a charade. Using these systems and institutions to give a semblance of democracy, and holding regular elections, becomes performing democracy. These become tools for feigned legitimacy on the international arena. Those foolable are also fooled on the domestic arena.

One of the clearest signs of performing democracy in Zimbabwe is rule by executive decree, driven through statutory instruments (“SIs”) and executive directives. SIs are a form of delegated legislation, whereby powers are designated by statute to a body or an individual – usually a government minister – to make regulations or laws around a particular issue. Section 134 of the Constitution regulates SIs and the parameters and boundaries within which they can be made. Explicitly, Parliament’s primary law-making power must not be delegated, and SIs must not be inconsistent with the Act of Parliament under which they are made. According to Veritas, a local legal thinktank, as at 8 November 2019, 239 SIs had been gazetted. In 2018 as at 30 November, 247 SIs had been made. In 2017 the figure stood at 163. In 2016 as at 4 November it was 137. The so-called second republic has obviously upped the game at churning out SIs. To be fair, other countries, including in the developed world, produce even more SIs a year. The question is on how much those SIs are necessary and reflect a progressive developmental and democratic agenda.

If SIs are permitted by our constitutional order, what is wrong with them? There is everything wrong if that architecture and system is abused. The abuse lies in circumventing democratic law-making on issues of central importance, allowing party policy and executive wishes to be promulgated into law through executive decree. Such decrees are not subjected to rigorous democratic contestation, debate, public input and cross-cutting scrutiny that is embedded in the Parliamentary law-making process. This is notwithstanding that section 134 of the Constitution requires SIs to be laid before the National Assembly in accordance with its Standing Orders and to be submitted to the Parliamentary Legal Committee for scrutiny. SIs do not go through the standard law-making processes, so they become an avenue to institute far-reaching reforms outside the checks and balances system. In the hands of sinister agendas, they are a useful tool for democratic subversion. Consequently, even in Europe from where this system of delegated legislation was passed to us, SIs have not escaped legal and political contestation for their undemocratic tendencies.

In quite a few instances in Zimbabwe, Ministers have promulgated illegal SIs. For instance, in October 2018 Finance Minister Mthuli Ncube through SI 205 of 2018 ordered a 2% tax in an illegal fashion when he reviewed the Intermediated Money Transfer Tax from 5 cents per transaction to 2 cents per dollar. This order was successfully challenged in court. The Finance Minister had purported to repeal a statutory provision, in breach of section 134 of the Constitution. An SI can never amend or repeal a statutory enactment. But when the High Court declared the SI to be illegal, the Minister’s response was not to take responsibility for the illegality – let alone acknowledge it. His response was to issue a statement alluding to the subsequent regularisation of the process by Parliament through two clauses in the Finance Bill in January 2019 which were passed to retrospectively rectify the illegality of the tax. According to the Finance Minister in his statement, “That judgment will not affect the collection and levy of the intermediated money transfer tax because the collection of the tax under SI 205 of 2018 was subsequently validated by Parliament under the Finance Act No 1 of 2019. Consequently, the 2% tax will continue to be levied”. Nil about the illegality he committed; no acknowledgement. Such is the arrogance and impunity.

But one can always challenge an unlawful SI in court, right? That is how it ought to work in a functional democracy. In ours, one can go to court but if precedence is to guide us, particularly on issues with a political bearing, we have seen the avoidance approach that has taken root from the High Court all the way to the Constitutional Court. Courts systematically shy away from pronouncing on questions with a political bearing, or that would put them on a collision course with the executive. Then systemic case management issues: the delays it will take for a matter to be set down, argued and for a judgment to be handed down will render the exercise academic. That is what happened with the 2% tax challenge when Mfundo Mlilo challenged Mthuli Ncube’s regulation. Despite the relative urgency of the matter, the court only made a ruling in September 2019, 11 months after the challenge was filed. That is also what happened with certain electoral petitions in 2018, with issues left to be overtaken by events. In a system where there is performance of democracy, one gets the false impression that the institutions of democracy are working, but it is form over substance.

Then we have the Presidential Powers (Temporary Measures) Act [Chapter 10:20] that allows the President to play the role of the legislature and by-pass Parliament. This Act allows the President to make laws which must then be brought to Parliament for confirmation within 180 days – essentially a reverse legislative process. The latest use of the Act was on 27 September 2019 to amend the Land Surveyors rules under SI 214 of 2019. It is this very Act that was used to Amend the Electoral Act in 2017 by President Mugabe. Although the Act was subsequently amended through the Electoral Amendment Bill H.B., 6, 2017, the amendments addressed in the Bill were initially promulgated under the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2017 on 15 September 2017.

The Presidential Powers Act purports to give the President power to make regulations in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest. The use of the Act is reserved for “dealing with situations that have arisen or are likely to arise and that require to be dealt with as a matter of urgency”. The Act is however constitutionally invalid as it violates the principle of separation of powers by delegating Parliament’s primary law-making function to the President. Under our Constitution, section 134 is express in its stipulation that Parliament’s primary law-making functions cannot be delegated, and that delegated law-making powers must be under express limits and specifications. The Presidential Powers Act offends that for two reasons. Firstly, it delegates primary law-making powers to the President in quite a plenary and unrestrained manner, and secondly, it does not specify the parameters and reach within which such regulations can be made.

If one considers the circumstances of the 2017 Electoral Act amendments, it is clear that the use of the Presidential Powers Act was not justifiable in terms of any public emergency. Parliament was in session. There was no impediment to the motion of amending the Electoral Act being presented before Parliament for debate and adoption. It would appear there was deliberate avoidance of Parliament and its processes for fear of much more far-reaching reforms being affected, as the amendments only introduced minor technical changes and nothing substantive.

Historically, the Presidential Powers Act has been used to subvert constitutional process albeit through legal means. This is one face – a variant – of abusive constitutionalism, a theory developed by David Landau, pitting the use of constitutional tools to undermine democracy with relative ease. Electoral law has been amended before through the Presidential Powers Act – also in the run-up to elections. This presents a real risk for the use of incumbency to tilt electoral law in one’s favour, with Parliament reduced to a rubberstamping institution. Even if the amendments are legitimate, the perception of manipulation that it portrays is one that the country would do well without.

Then the monumental confusion and uncertainty ushered in by half-baked SIs and the back and forth in policy positions. The last thing a regime riding on a “Zimbabwe is open for business” tagline would want is policy and legal uncertainty. Beyond the illegalities of some of the SIs, one notes the number of directives that are issued by one government department or another, and then withdrawn. Recently government announced the banning of cash-out transactions, only to backtrack a few hours later. On 25 November 2019 government abruptly scrapped subsidies on grain, only to be reversed by the President three days later. This has also happened with SIs themselves. For example, government promulgated SI 145 of 2019, Grain Marketing (Control of Sale of Maize) Regulations in June 2019, classifying maize as a controlled product. The SI barred farmers from selling maize to private buyers, but only to the Grain Marketing Board or contractors, undoing the liberalisation of the sale of grain instituted in 2009. In October 2019, government reversed that decision and allowed for private sale and importation of grain. The back and forth betrays policies that are not thought-through, shows a divided government with officials pulling in different directions and hastily making and implementing decisions without debate and consensus, and shows confusion, inconsistency and even cluelessness.

It is not hard to understand why the regime ventures in contradictions: the regime is yet to understand the correlation between rule of law, business investment and economic prosperity. The evidence of that deficit is overwhelming. Yet a side of me believes that a section of those men and women in government are fully aware of the contradictions and inconsistencies, but lack sincerity in being truly democratic and in being servants of the people. After all, if they become truly democratic, politics will cease to be a self-enrichment enterprise. All the talk of reforms, ease of doing business and Zimbabwe open for business, becomes rhetoric for perception management.

If you see too many SIs, too many laws being instituted, and too many directives from the executive, it’s a sure sign that the country is being mismanaged. It betrays cluelessness, trial and error, and reactiveness. As for us, as ‎Graça Machel counsels, no longer is it time to plead for accountability; we must demand it. That is what citizens in a constitutional democratic republic do.

Source: Musa Kika

*Musa Kika (PhD) is a Zimbabwean lawyer specialising in public law. He can be contacted at mkika@llm17.law.harvard.edu