On Monday this week the Government published the Criminal Law (Codification and Reform) (Standard Scale of Fines) Notice in a Gazette Extraordinary. It was not just the Gazette that was extraordinary – the notice was too.
Background to the Notice
Statutes which create criminal offences usually specify the penalties that courts may impose, and the penalties often consist of fines whether or not coupled with terms of imprisonment. Before 2004 fines were expressed as monetary amounts but inflation kept reducing their real value so that statutes had to be amended constantly in order to keep the fines realistic. Hence section 280 of the Criminal Law Code, enacted in 2004, provided that fines were to be expressed as levels on a Standard Scale of Fines set out in the First Schedule to the Code. According to this Standard Scale, a level 1 fine was ZWL$200 [this was after the Schedule was amended in November 2020], a level 2 fine was ZWL$300, a level 3 fine was ZWL$500, and so on all the way to level 14 which was ZWL$800 000. According to section 280 the monetary amounts in the Standard Scale can be amended through a statutory instrument, which is a much quicker process than amending individual fines in each Act of Parliament. So if, for example, the Minister publishes a statutory instrument stating that level 1 fines are to be increased to $1 000, the amendment will automatically increase the amounts in every statute that provides for a fine of level 1 to be imposed.
Contents of the New Notice
The Notice purports to be made by “the Minister” in terms of section 280 of the Criminal Law Code. It does not specify which Minister made it, and that is important because, as we shall explain presently, section 280 gives two Ministers separate power to make notices amending the Standard Scale of Fines.
The Notice sets out a new scale of fines, and increases them massively:
A level 1 fine, which was fixed at ZWL$200 in November last year, is now ZWL$1 000, a fivefold increase
A level 2 fine, which was fixed at ZWL$300 last November, is now ZWL$2 000, almost a sevenfold increase
A level 3 fine, which was ZWL$500, is now ZWL$5 000, a tenfold increase,
and the remaining fines have been doubled.
Invalidity of the Notice
The Notice is invalid for at least two reasons, both of which are to be found in the curious provisions of section 280 of the Criminal Law Code, the section under which the Notice purported to be made.
Section 280, as we pointed out above, gives two Ministers power to amend the Standard Scale of Fines:
- The Minister of Finance and Economic Development can amend the Scale in terms of subsection (4a) of the section, subject to the following conditions:
- He must consult the Minister of Justice before doing so,
- He cannot amend the scale more than once a fortnight,
- The purpose of any amendment must be “to take into account the decline in the purchasing power of the Zimbabwean dollar in relation to the United States dollar”, and
- Any increase in the fines must be calculated by multiplying the US dollar amounts in the third column of the scale by the current exchange rate between the US and Zimbabwean dollar [There used to be a third column specifying US dollar amounts, but there hasn’t been one for many years].
2. The Minister of Justice, Legal and Parliamentary Affairs: He is given an independent power to amend or replace the Scale by subsection (5) of section 280 of the Code, and he can do so “whenever [he] considers such an amendment or replacement to be necessary as a result of a change in the purchasing-power of money or for any other reason”– so his power is a very wide one, much wider than that of the Minister of Finance. It is however subject to an important qualification under subsection (6) of the section: he cannot publish a statutory instrument amending or replacing the Scale “unless a draft has been laid before and approved by Parliament”.
Why section 280 should give two Ministers power to amend the same scale of fines, and why their separate powers are subject to such different conditions, is beyond the wit of man to understand. Perhaps it made sense when Zimbabwe had a multi-currency régime and US dollars were legal tender alongside the Zimbabwe dollar. Be that as it may, whichever Minister published the latest amendment, it is illegal because:
- If it was the Minister of Finance and Economic Development, the increases in the level of fines are far greater than are permitted by section 280(4a), which envisages adjusting the Zimbabwe dollar amounts to reflect differences in the exchange rate between the Zimbabwe and US dollars. The Zimbabwe dollar has not depreciated fivefold, sevenfold and tenfold against the US dollar since November, when the scale of fines was last amended.
- If it was the Minister of Justice, Legal and Parliamentary Affairs, a draft of the notice was never presented to, much less approved by, the National Assembly or the Senate as required by section 280(6).
Either way, therefore, the notice is invalid.
The previous amendment of the Standard Scale, published in November last year, was probably illegal for the same reasons, and likewise the amendment it replaced, which was published in February 2020 – but perhaps we shouldn’t delve too far into those amendments.
Failure to Specify Which Minister Made the Notice
The failure to specify which Minister was making the notice may not be enough in itself to invalidate it, so long as one of the two possible Ministers is prepared to stand up and identify himself as the guilty party.
Generally, statutory instruments are not invalid if they cite the wrong section of the statute under which they were made, and the same must apply to the wrong citation of the Minister who made them – for example, if the opening paragraph of a statutory instrument says it was made by the Minister of Home Affairs when it was really the Minister of Home Affairs and Cultural Heritage.
On the other hand, legislation of all kinds should contain enough information to show readers, at least prima facie, that they were properly made. That is why Acts of Parliament begin with the words:
“Enacted by the Parliament and the President of Zimbabwe”
and regulations and other statutory instruments begin with a paragraph stating who made them and the Act of Parliament under which they were made.
The Notice with which we are concerned does not state who made it, and since there are two Ministers who might have done so the notice does not give readers enough information to satisfy themselves that it was properly made. Arguably therefore the notice is invalid on this ground as well.
Notices amending or replacing the standard scale of fines are important because, as we pointed out at the beginning of this bulletin, they affect the levels of fines that can be imposed for almost all statutory offences. They affect the sentences that courts can impose on convicted criminals and the deposit or “spot” fines that police officers can levy for traffic and other petty offences. The notices therefore affect more people than almost any other statutory instruments. Hence the utmost care should be taken when they are issued to ensure they are correctly and validly made.
Insufficient care was taken when publishing the latest amendment notice, and the consequences are potentially great. Courts which impose sentences based on the new fines may exceed their jurisdiction and the sentences will have to be set aside on appeal or review. If the police issue traffic tickets for the payment of the new fines, motorists who pay them will have to be refunded. Many people will be put to inconvenience, some will even suffer hardship.
And all because the Minister [whichever one it was] carelessly failed to comply with section 280 of the Criminal Law Code.