Author: TSA Press

It used to be that to even consider becoming a lawyer, you had to ace — or at least do pretty well — on the LSAT. But now that over 30 law schools accept the GRE in lieu of the LSAT, that’s not always true. And more law schools are hopping on the GRE train all the time.

The latest law school to offer students the opportunity to opt out of the LSAT is Seton Hall Law. In their statement on the admissions change, the school focused on the GRE’s ability to attract a broader base of students to law school. As Dean Kathleen M. Boozang said:

“Law can be a very welcoming field for those with interdisciplinary backgrounds, particularly those with STEM degrees, but the act of transitioning to law school can seem so daunting that the value of the law degree gets obscured. We hope that accepting an interdisciplinary test will allow more people to see that a law degree will enhance their careers, particularly those who may not intend to use the degree to practice law.”

For those keeping track at home, here are the 30+ schools that accept the GRE for admissions purposes:

And we are likely to only see this trend continue. According to a survey by Kaplan Test Prep, a full 25 percent of law schools have plans to accept the GRE. Another Kaplan study determined 49 percent of students surveyed support the move to the GRE.

Even though more and more law schools are on board with the GRE, the  body responsible for law school accreditation, the American Bar Association, hasn’t officially weighed in on using anything other than the LSAT in admissions. ABA accreditation Standard 503 currently mandates that law schools require admissions testing and that the test used be “valid and reliable.” Whether the GRE meets that standard, the ABA hasn’t officially said. But now that so many law schools have moved on the GRE, it might be impossible to put the toothpaste back in the tube.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Ed. note: Please welcome Jordan Rothman to Morning Docket duty here at Above the Law.

* UNLV Law paid James Comey $54,000 for a speech and a stay at the Bellagio. It sure pays to get off the government dole. [Nevada Independent]

* A Rutgers student was arrested for sending a threatening email to law students and staff —looks like someone needs a refresher on true threats law. [Northjersey.com]

* The Justice Department is distancing itself from Rudy Giuliani… this was kind of expected. [New York Times]

* The Indiana Attorney General faces a disciplinary hearing today over allegations he groped four women at a bar last year. [The Hill]

* Netflix is fighting back against a lawsuit aimed at blocking its film on the Panama Papers. Meryl Streep shall not be silenced! [The Guardian]

* A Florida judge has temporarily blocked a law making it harder for ex-felons in that state to vote. [New York Times]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Update on Statutory Instruments: Part 2

This bulletin continues where Bill Watch 52 of 16th October [“Statutory Instruments:  Part 1]” [link] stopped;  it will deal with Government Gazettes from SI 205/2019 of 20th September up to SI 221/2019 of 18th October.

But first we draw attention to Constitution Watch 8/2019 of 19th October [link] commenting on the implications of the High Court decision in the important case of Mlilo v Minister of Finance and Economic Development [link].  The judgment invalidated SI 2015 gazetted on 12th October 2018 – the statutory instrument that imposed the 2% transaction tax.  The government then made it lawful in the Finance No 2 Act gazetted on the 21st August 2019 and backdated it to the time the 2% tax was introduced.

This bulletin indicates three recent statutory instruments which amend Acts of Parliament  –their validity could be challenged in the High Court using the Mlilo decision as a precedent.

Gazette of 20th September 2019

Correction of maximum income tax rate to 40%

SI 205/2019 [link] which amends the Finance Act is the first of the statutory instrument that are open to challenge on the basis of Mlilo’s case.  The SI amends the income tax bands for the period 1st August to 31st December 2019, correcting the rate for the top taxable bracket to 40% from 45% specified in the Finance (No. 2) Act.  It has been plausibly suggested that the 45% may have been a typographical error in the Finance (No 2) Act, because the Budget Presentation itself specified 40%.  The change went undetected and uncorrected while the Bill was going through Parliament and a few days later appeared in the Finance (No. 2) Act.

Note: The Minister can easily resolve doubts about the SI’s validity by including in the next Finance Bill a clause confirming 40% as the highest income tax rate for the five-month period August-December 2019.  He will have the opportunity to do so when he presents the 2020 National Budget during November.

Insurance:  Increased minimum prescribed assets ratios for insurers

SI 206/2019 [link] is aimed at registered insurers.  It effectively doubles the minimum prescribed asset ratios, i.e., the proportions of an insurer’s total assets that must be held in “prescribed securities” such as stocks or bonds issued by the State, statutory bodies and local authorities [including, for non-life insurers, Treasury bills and similar short-term instruments] or other investments  approved by the Minister of Finance and Economic Development.  The SI replaces SI 24/2016, the previous SI on the subject and goes into far greater detail than its predecessor on the penalties that can be imposed by the Insurance and Pensions Commission [IPEC] for non-compliance.

Note: A “prescribed assets” mechanism for insurers is usually justified as protecting policy holders against the consequences of injudicious investments by their insurers.  Another view, however, is that these prescribed assets were increased so that the State has access to more financial resources that would not otherwise be available to the State from investors from the money market.

High Court civil cases fees: correction of error

SI 207/2019 [link] corrects an error in SI 187/2019 [link] by replacing item 2 of the Schedule of fees [item 2 deals with court fees chargeable for a summons in civil cases claiming payment of money.

Persons who may lawfully acquire, possess and supply industrial hemp

SI 208/2019 [link] is a set of regulations, made by the Minister of Justice, Legal and Parliamentary Affairs in terms of section 161(g) of the Criminal Law Code, listing the following as persons who may lawfully acquire, possess and supply hemp:

• any “farmer” [the term is not defined] so authorised in writing by the Minister of Lands, Agriculture, Water, Climate and Rural Resettlement,
• the State or any of its organs on farms operated by the State or by any State organ,

as long as they are cultivating “industrial hemp” [there is a definition] for industrial purposes.  At least, that is how Veritas interprets the regulations, which could – and should – be much more clearly and tightly stated, given that the they are intended to create an additional class of persons exempted from the criminal penalties normally associated with possession of cannabis plants, prepared cannabis and cannabis resin.

Gazette of 23rd September 2019

New Standard Scale of Fines in ZWL dollars

SI 209/2019 [link] by the Minister of Justice, Legal and Parliamentary Affairs amends an Act of Parliament – it repeals and replaces the First Schedule to the Criminal Law (Codification and Reform) Act.  The enabling provisions cited by the Minister – section 280 of that Act and section 24(1) of the Finance (No. 2) Act, 2019 (No. 7 of 2019) – expressly confer the power to amend Acts of Parliament.  This SI, too, is open to challenge on the basis of Mlilo’s case.

It is important to remember that the new figures apply only to offences committed on or after the date the SI was gazetted, 23rd September.  Some examples of the new levels are: level 1 is ZWL$ 40, level 3 is ZWL$ 100 [the maximum fine to be imposed by a police officer for a petty offence under the admission of guilt procedure], level 14, the highest level, is ZWL$ 30 000.

Gazettes of 27th September 2019

ZWL dollar wages and allowances for Cotton Industry

SI 210/2019 [link] records a collective bargaining agreement fixing wages and allowances in the cotton industry, back-dated to 1st June.

Customs duty suspensions (1) disabled persons and (2) commercial tyres imported by approved importers

SI 211/2019 [link] fine-tunes the effect of the suspension of duty for motor vehicles imported for disabled persons by section 4 of the principal regulations, SI 257/2003.

It also modifies the suspension allowed on commercial tyres imported by approved manufacturers by section 9EE of SI 257/2003.

Prohibition on the use of forex in domestic transactions

SIs 212 and 213/2019 have already been covered in Bill Watch 50/2019 dated 29th September [link].

SI 213/2019, which amends the Exchange Control Act under the powers conferred on the President by the Presidential Powers (Temporary Measures) Act, is the third recent SI open to challenge on the basis of Mlilo’s case.

Gazette of 4th October 2019

Annual registration fees for land surveyors

SI 214/2019 [link] – new fees, stated in ZWL, for land surveyors, land surveyors-in-training and land survey technicians.

Local authority by-laws

SI 215/2017 [link] – Chiredzi Town Council By-laws amending rents and refuse removal charges for the “incorporated area”, i.e., the high density township/s administered by the council.

Customs duty

SI 216/2019 [link] – amendment of the duty rebate for food, soap and cosmetics manufacturers.

SI 217/2019 – a lengthy set of Suspension Regulations giving effect to the Economic Partnership Agreement between the European Community (EC) and Eastern & Southern Africa states (ESA).  Veritas is trying to obtain this to post in on the Veritas website.

Collective bargaining agreement: ZESA

SI 218/2019 [link] – temporary interim hardship allowances for ZESA Grades A1 to D2, January to March 2019.

Gazette of 11th October 2019

No statutory instruments were published in this regular Friday gazette.

General Notices

Those interested in the mining sector should note the 32 General Notices from the Mining Affairs Board.  These GNs notified applications to the Board for Exclusive Prospecting Orders for a variety of minerals in most of the country’s mining districts.  The Board has set a deadline of 1st November for receipt by the Board of any objections to the orders being granted.

Gazette of 18th October 2019

Statutory Instruments

Local authority by-laws – Masvingo RDC and Epworth Local Board

SI 219/2019 [link] – the Masvingo Rural District Council (Environmental and Natural Resources Conservation) By-laws, 2019 is a 32-page set of controls for many aspects of use of land and natural resources within the area of the council.

SI 220/2019 [link] – the Epworth Local Board (Dog Licensing and Control) By-laws, 2019 is marred by a meaningless final section 21 which assumes that section 4 restricts the number of dogs that an individual can own – but neither section 4 nor any other section contains such a restriction.

Defence Forces – Medical Professions Cadets

SI 221/2019 [link] – the Defence (Regular Force) (Nursing, Radiography, Pharmaceuticals, Physiotherapy, Laboratory Science, Veterinary Science and other Medical Professions) (Cadets) Regulations, 2019 is a brief set of regulations for the engagement of cadets studying to qualify for one of the professions listed.  Cadets will be engaged as privates, but be subject to specified provisions of the regulations applicable to Defence Force officers.  During university/college vacations they will be liable for military duty as determined by the Commander.  They will be responsible for all training, registration, living and other expenses incurred while studying.  On qualification they will be commissioned and be obliged to serve for a further five years.

General Notices

New Special Economic Zone in Selous for Karo Resources

GN 1838/2019 [link] notifies the declaration by the Special Economic Zones Authority as a special economic zone of “a portion of Selous covering 50 667 hectares located on land covered by special mining grants issued to Karo Zimbabwe Holdings (Pvt). Ltd.”

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

Both lines move slowly.

Zimbabwe has faced an acute fuel shortage since September 2018. But the shortage is just one of several challenges that drivers here now face.

Atop the list of drivers’ complaints is the Zimbabwean government’s mandate to blend ethanol, a renewable fuel made from plants, into regular unleaded fuel, called a petrol blend here. So while prices at the pump soar, drivers say that the blended fuel lessens engine efficiency, damages their cars and reduces mileage per tank.

Selling fuel that has not been blended with ethanol has been illegal here for years. Leaving drivers, like David Kamusingo, a driver in the fuel line, without an option.

“Ever since the government mandated fuel suppliers to blend unleaded fuel with ethanol, the fuel does not last long, but its cost remains high,” he says. “I used to use way less money on fuel than I do now. The fuel is diluted, it does not last long; and yet my earnings have not increased.”

Eddington Mazambani, the acting chief executive officer at the Zimbabwe Energy Regulatory Authority, says there were multiple motivations for the country to begin mandatory blending.

“Fuel blending was introduced for economic, social and environmental reasons, which include energy security, as ethanol blends increase the fuel pool of the country and reduces unleaded petrol imports into the country thus saving foreign currency,” Mazambani said in a written response to GPJ.

The government requirement to blend ethanol into fuel increased from 5% to 20% this year. Despite that adjustment, fuel continues to be scarce and its cost has risen nearly 750% in nine months, soaring from 1.32 Zimbabwean dollars (ZWL) (11 cents) to 11.55 ZWL (87 cents) per liter amid increases in prices of other basic commodities. Motorists say the increase in the percentage of ethanol has led to the fuel depleting at a faster rate.

Importers have a directive to sell fuel blended with 20% ethanol, although earlier this year the percentage blend was reduced to 5% due to the unavailability of ethanol. Effects of the rainy season, combined with high demand for fuel, has left Green Fuel, the country’s main ethanol producer, unable to harvest enough sugar cane to meet demand for ethanol, says Merit Rumema, the company’s corporate social responsibility and marketing manager.

Itai Mutadza, a petroleum technology lecturer at the Harare Institute of Technology, says there are pros and cons to fuel blending.

“Blending up to an optimum of about 20% improves fuel efficiency, efficiency in terms of the engine,” he says. “It burns better, it reduces gases that are released to the environment. The carbon footprint is reduced.”

On the other hand, “Once you go above 20%, eventually you will damage your engine in the long run,” he says.

Car manufactures agree. Most indicate that the percentage of ethanol should not be above 10%.

Zimbabwe does not have a local car manufacturing industry. Many used cars are imported secondhand from Japan. Nissan, a major car manufacturer based in Japan, reports that fuel with more than 10% ethanol can damage their cars.

Kelvin Moyo is a motorist who, like other drivers here, does not trust the efficiency of the blended fuel on his imported vehicle.

“There are theories that blended fuel is harmful to engines. I believe this to be true. These cars we are using are all imported from Japan and prior to their importation, they relied on unblended fuel,” he says.

Gift Bonzo, who has been a professional mechanic for 20 years, confirms drivers’ fears.

“In a negative way, blended fuel affects the cars we have now that are imported from Japan,” he says adding that catalytic converters and fuel injectors are compromised.

Drivers wait in long lines to refuel their vehicles. Regular, unleaded fuel is now illegal to sell; the only option is fuel that has been blended with 20% ethanol.

Linda Mujuru, GPJ Zimbabwe

Bonzo says fuel blending also decreases mileage per tank.

“Here, we blend with ethanol and ethanol has sugar content which at times clogs in injector pumps. We used to have cars that were manufactured locally which do not have electrical injectors, but those were more compatible with blended fuel,” he says.

“These cars are labeled so that they are compatible with unleaded fuel only, but because the consumer has no option, they just end up using the fuel that is available. I think people are supposed to be given a choice on the fuel depending on the value and the compatibility of the fuel with their car,” says Bonzo.

But that choice isn’t available to drivers here.

“It’s not a forcing matter,” says Kamusingo, the motorist in the line at the Waterfalls fuel station. “But one should have freedom of choice as alluded in the Zimbabwean constitution.”

Linda Mujuru, GPJ, translated some interviews from Shona to English.

Both wore black armbands at a 2003 Cricket World Cup match against Namibia in Harare to “mourn the death of democracy in Zimbabwe” under President Robert Mugabe.

“They decided as a team to do that,” the double Olympic swimming gold medallist Coventry told insidethegames. 

“I don’t want to speak on their behalf but obviously what happened after that with them, not necessarily playing for Zimbabwe, I think if they were to look back now, they would say maybe they would have done things slightly differently.”

Olonga and Flower fled the country after their gesture.

“I have had criticism in my career to say you should have acted the same way and my response has always been to say if I had done that I wouldn’t have been able to potentially continue doing what I loved,” Coventry, now the Sports Minister in Zimbabwe, said.

“What i was doing through my swimming was bringing an awareness to a situation to a country that didn’t have any light being shone on to it.”

Cricketer Henry Olonga wore a black armband during the 2003 World Cup to protest about the political situation in Zimbabwe under President Robert Mugabe – with devastating effects on his career ©Getty Images

Coventry added: “Myself, Henry and the Flowers, we have all had that conversation.

“We all agree that the way in which we all decided to do things achieved the same goal at the end of the day.”

The IOC Athletes’ Commission is drawing up guidelines for Tokyo 2020 in the wake of recent protests at sporting events.

Coventry, speaking at the Association of National Olympic Committees (ANOC) General Assembly in Doha last week, revealed the IOC Athletes’ Commission had spoken to athletes through a variety of different channels.

She claimed a recent conference call had shown there was strong feeling among athletes that protests should take place away from medal ceremonies and the field of play.

“We have seen it happen at the FINA World Championships and we have seen it in Lima [at the Pan American Games] and athletes are talking about this,” Coventry said.

“To protest on a podium with people next to you who maybe don’t believe in what you are saying, we don’t really believe in that.

“How we are approaching the situation is to get athletes to understand if they have something they want to shine light on, they can do that using their social media and talking to the press.”

Post published in: Business

On Wednesday the World Food Programme marked World Food Day with a report that 63% of Zimbabweans lived below the poverty datum line and 27% of children have stunted growth. It said up to 5.5 million people will be food insecure by January.

For its part, the Zimbabwe Human Rights NGO Forum, in its annual report this week, calls for an inclusive and comprehensive national dialogue to create a culture of respect for human rights and urges greater compliance with the constitution, genuine reform of repressive laws and the reform of the security sector as well as fair and impartial application of the law.

The need for reform was underlined by the murder this week of a Harare vendor while in police custody. 29 year-old Hilton Tafadzwa Tamangani died in agony after being savagely beaten with batons.

Meanwhile the International Monetary Fund has widened its estimated contraction of Zimbabwe’s economy this year to 7.2%, with endless price hikes pushing the economy into hyper-inflation.

Soaring prices have prompted Zimbabwe’s public sector unions to warn that people were simply unable to afford to go to work. The unions are demanding that government employees should be paid US dollar-indexed salaries. They want the lowest paid workers, who get Zim $1,023 (US$67) a month, to receive the equivalent of US $475.

The co-chair of the Apex Council, which groups 14 public sector unions, Thomas Muzondo, said ‘Here is a situation where one has no capacity to go to work. The person wants to go to work but has no capacity to go to work. It is a different scenario to a stayaway.’

Workers may not have the fares to get to work or food for breakfast but President Mnangagwa was able to hire a private jet from Dubai to pick him up from Harare and take him on a 35-minute flight to Bulawayo at US$30,000 per hour.

‘Once again we get a whole luxury aircraft hired from Dubai to fly Mr Mnangagwa from Harare to Bulawayo when doctors can’t even afford to catch a taxi to work,’ MDC treasurer David Coltart said. ‘The callousness and insensitivity of this regime to the appalling suffering of people is now simply disgusting.’

Other points

• Next week the Vigil will stage a demonstration in protest at the murder of the Harare vendor while in police custody (see: https://www.newzimbabwe.com/police-brutality-victim-dies-in-custody/).
• The streets of central London were thronging with opponents of the government decision to withdraw from the European Union. A number of people stopped by to express their support for the Vigil.
• Thanks to those who helped set up the front table and put up the banners today: Miriam Gasho, Jonathan Kariwo, Alice Majola, Rosemary Maponga, Patricia Masamba, Joyce Mbairatsunga, Lucia Mudzimu, Mary Muteyerwa, Hazvinei Saili, Rudo Takiya and Kevin Wheeldon. Thanks to Rosemary and Alice for looking after the front table, to Lucia, Miriam, Bianca Mpawaenda and Patience Chimba for handing out flyers, to Mary for drumming and prayer and to Patricia, Hazvinei and Jonathan for photos.
• For latest Vigil pictures check: http://www.flickr.com/photos/zimb88abwevigil/. Please note: Vigil photos can only be downloaded from our Flickr website.

FOR THE RECORD: 21 signed the register.

EVENTS AND NOTICES:

• ROHR fundraising dinner dance. Saturday 2^nd November from 6 pm till late. Venue tba. ROHR is hosting a dinner dance to raise funds for a Zimbabwe peace building initiative. Tickets £25. Contact: Esther Munyira 07492058109, Hazvinei Saili 07857602830, Margaret Munenge 07384300283, Pamela Chirimuta 07762737339.
• The Restoration of Human Rights in Zimbabwe (ROHR) is the Vigil’s partner organization based in Zimbabwe. ROHR grew out of the need for the Vigil to have an organization on the ground in Zimbabwe which reflected the Vigil’s mission statement in a practical way. ROHR in the UK actively fundraises through membership subscriptions, events, sales etc to support the activities of ROHR in Zimbabwe. Please note that the official website of ROHR Zimbabwe is http://www.rohrzimbabwe.org/. Any other website claiming to be the official website of ROHR in no way represents us.
• The Vigil’s book ‘Zimbabwe Emergency’ is based on our weekly diaries. It records how events in Zimbabwe have unfolded as seen by the diaspora in the UK. It chronicles the economic disintegration, violence, growing oppression and political manoeuvring – and the tragic human cost involved. It is available at the Vigil. All proceeds go to the Vigil and our sister organisation the Restoration of Human Rights in Zimbabwe’s work in Zimbabwe. The book is also available from Amazon.

• Facebook pages:

  Vigil: https://www.facebook.com/zimbabwevigil
  ROHR: https://www.facebook.com/Restoration-of-Human-Rights-ROHR-Zimbabwe-International-370825706588551/
  ZAF: https://www.facebook.com/pages/Zimbabwe-Action-Forum-ZAF/490257051027515

Post published in: Featured

In a move that startled not only Zimbabwean authorities but also some independent observers, the U.S. last week unilaterally banned Zimbabwean rough diamonds from the Marange field, based on unconfirmed allegations that the gems were being extracted by forced labour.

The Zimbabwean government has vehemently denied the charges, calling them a “shameless lie.” It issued a statement, saying that “invoking the repulsive prospect of alleged forced labour is a new nomenclature for seeking to bar Zimbabwe’s diamonds from the international markets. This move constitutes a grave and serious attack on Zimbabwe’s interests and is no less than a manifestation of undeclared sanctions.”

Zimbabwe’s Minister of Justice Ziyambi Ziyambi was even blunter. “We have never had anyone, let alone children, forced to work in the Marange diamond field,” he said, adding that “we believe there is a political agenda hidden behind the ban.”

He may have a point. Despite making genuine strides to transform Zimbabwe following decades of misrule under strongman Robert Mugabe, who died last month, President Emmerson Mnangagwa and his government find themselves regularly maligned, not only by the opposition but also by NGOs and the western press. Allegations of forced labour – even if unfounded – simply provide more fodder to the naysayers.

This is strange, given the government’s ambitious reform agenda to turn the country around, which has already yielded concrete results. It has implemented reforms across the media, economic and political spaces, bringing them in line with western standards. It has cracked down on corruption and initiated the process of compensating white farmers who suffered from Mugabe’s discriminatory land policies. It has launched a challenging currency reform and managed to achieve a budget surplus and a positive current account for the first time since 2009.

International organisations have commended Zimbabwe’s efforts. The International Monetary Fund – with whom Zimbabwe signed a two-year monitoring programme that could earn it debt forgiveness and future financing – recently stated that “significant economic reforms were underway.” The World Bank, meanwhile, upgraded Zimbabwe from a low income to a lower middle-income country in July. In addition, it listed Zimbabwe among the “top 20 improvers” in its Ease of Doing Business list. And while across the world there was a decline in political rights and civil liberties for the 13th year running, the international watchdog Freedom House raised Zimbabwe’s status from Not Free to Partly Free, the only country in the world whose ranking improved last year.

Clearly, many challenges remain and it will take time for Mnangagwa to pull his country out of the desolation that Mugabe left behind. Even U.S. ambassador Brian Nichols acknowledged the challenges during a recent radio show: “This is a government that’s dealing with two decades of failed policies and you can’t fix that overnight,” he said. “People have to keep that in perspective.”

And many have. Mnangagwa’s African peers have come out in strong support. During their recent summit in Tanzania, the Southern African Development Community stressed that the Mugabe era sanctions were no longer acceptable and were hurting the growth of the entire region. In fact, they declared October 25th, 2019 as Zimbabwe Solidarity Day, when the 16 member states will stage events and other activities to issue a joint call for the “immediate” lifting of sanctions imposed on Zimbabwe.

The European Union too has begun to normalise its relations with Zimbabwe, a process that has accelerated since the election of Mnangagwa. Only a few sanctions remain in place and the start of political talks in June was perceived as a positive sign towards abandoning all EU sanctions in the near future.

Only the U.S. has maintained wide-ranging sanctions, at least until March 2020.

So is “there a political agenda hidden behind this ban,” as Ziyambi suggested, perhaps part of a concerted campaign to demonise the Mnangagwa administration in order to maintain the U.S. sanctions imposed on Zimbabwe?

On October 1st, U.S. Customs and Border Protection announced that it issued a withhold release order to bar the trading of uncut diamonds from Zimbabwe. The order concerns artisanal rough diamonds in the Marange fields in eastern Zimbabwe, claiming that the small-scale producers who predominate in these fields use coerced labour. Yet the U.S. Embassy in Harare could not produce any primary evidence or detailed authoritative information on forced labour allegations, and it admitted to relying on reports from third parties, such as news reports or allegations made by non-governmental organisations. U.S. Embassy spokesperson Stacy Lomba simply referred to “widespread public reporting” when asked about the grounds of the order.

Meanwhile, the furious response by the Zimbabwean government seems to indicate genuine anger. A result, perhaps, of always being blamed immediately without any due diligence, whether it’s alleged abductions of activists or this forced labour charge.

It certainly appears that the authorities have nothing to hide. Zimbabwe’s Deputy Mines Minister, Polite Kambamura, invited the media and NGOs to visit the mine. “If they request to go to Marange, our doors are open. It’s so disturbing that they made this announcement.”

In the era of fake news, such important decisions should not be based on unverified rumours. The U.S. did not send teams to Zimbabwe to monitor the production of diamonds or to consult with the government authorities and committees in charge of supervising the diamond fields. Even the 81-nation Kimberly Process, which aims to ensure that earnings from diamond mining are not used to fund conflict, confirmed that it has no restrictions on trade in Zimbabwean diamonds.

This gives the impression of deliberate vilification. Sadly, with western media quickly jumping on the bandwagon without any fact-checking, the damage is done. More bad news out of Zimbabwe – a pattern which harms progress and likely keeps U.S. sanctions in place.

On September 26th, at the UN General Assembly in New York, President Mnangagwa stated that the sanctions were counter-productive, hurting his government’s reform efforts to turn Zimbabwe around after decades of isolation and mismanagement. In his address to the nation in early October he said: “I’m aware of the pain being experienced by the poor and the marginalized. Getting the economy working again from being dead will require time, patience, unity of purpose and perseverance.”

Zimbabwe is a country that has been scarred by a dictator for decades and suffered drought and Cyclone Idai just this year. Yet it is poised to shake off its dark shadow, abandon its pariah status and re-engage with international markets and the world community. Instead of unfairly tarnishing its reputation, Zimbabwe needs all the help – and goodwill – it can get. 

Post published in: Business

Introduction

Several Acts of Parliament contain provisions permitting the President or a Minister to make statutory instruments ‒ regulations, orders and so on ‒ which amend the Acts themselves.  For example:

• The Schedule to the Land Acquisition Act sets out principles which must be followed in assessing compensation to be paid for farms compulsorily acquired by the State.  Section 50 of the Act states that the Minister of Lands may by statutory instrument amend the Schedule by adding, altering or deleting any of the principles.
• The Transfer of Offenders Act has a schedule listing countries to which convicted offenders may be sent to serve out their sentences.  Section 3 of the Act states that the Minister of Justice may by statutory instrument amend the Schedule in order to add further countries to the Schedule or to delete countries from it.
• The Schedule to the Administrative Justice Act lists administrative decisions and actions which cannot be challenged under the Act.  Section 11(6) of the Act gives the Minister of Justice power to make statutory instruments adding items to or deleting them from the Schedule.
• And section 3 of the Finance Act ‒ the Act which sets the rates of income tax and many other taxes ‒ gives the Minister of Finance power to make regulations amending the rate of any tax that is levied under the Act.

It was this last provision ‒ section 3 of the Finance Act ‒ that came under scrutiny in a recent case, Mlilo v Minister of Finance & Economic Planning HH-605-2019.  The background to the case was that the Minister had used his power under section 3 of the Finance Act to publish regulations [SI 205 of 2018] which amended various provisions of the Act in order to raise the intermediated money transfer tax [IMT tax] to 2 per cent.  Mr Justice Zhou ruled that both section 3 of the Act and the Minister’s regulations were unconstitutional.  The full judgment can be accessed on the Veritas website [link].

Summary of the Mlilo Case

The Minister’s argument in Mlilo’s case was that SI 205/2018 was specifically authorised by section 3 of the Finance Act, which not only confers regulation-making powers on the Minister but goes on to expand those powers by explicitly providing that:

• such regulations “may amend or replace any rate any of any tax, duty, levy or charge or duty that is charged or levied in terms of any Chapter of this Act”;
• the amended or replaced rate may be implemented immediately, but not backdated to a date before the gazetting of the regulations; and
• the regulations must be confirmed by an Act of Parliament.

On the face of things, the Minister’s argument was correct.  The Finance Act apparently authorised him to make regulations amending the Act’s provisions specifying the rate of the IMT tax.  Which was exactly what the Minister had done in SI 205/2018.

The applicant’s counsel, Mr Tendai Biti, on the other hand, pointed out that:

• section 3 of the Finance Act was passed by Parliament before the adoption of the current Constitution;
• the Constitution placed new limits on Parliament’s power to delegate law-making powers to Ministers, particularly in section 134, which states that:
• “Parliament’s primary law-making power must not be delegated”
• section 3 unconstitutionally goes beyond those limits and must be regarded as overridden by the Constitution to the extent of any inconsistency.

Justice Zhou accepted this argument.  He ruled that by amending the Finance Act, the Minister was exercising part of “Parliament’s primary law-making power”, something expressly prohibited by section 134(a) of the Constitution.  It was also inconsistent with the principle of separation of powers.  The Judge therefore declared SI 205/2018 invalid and set it aside.

The essence of Justice Zhou’s decision is that a Minister cannot by statutory instrument lawfully amend an Act of Parliament, even when the Act of Parliament specifically authorises the Minister to do so.

Importance of the Mlilo decision

For taxpayers, at least in the short term, the importance of the decision is not very great.  By the time it was handed down, SI 205/2018 had already been confirmed by the Finance (No. 2) Act, 2019 (No. 7/2019) gazetted on 21st August, a provision backdated to 12th October 2018.  That development left the 2% IMT tax in place, subject to a possible future legal challenge to the constitutionality of backdating the confirmation to 12 October last year.

In the long term, on the other hand, the decision could be momentous.  As noted at the beginning of this bulletin, the Finance Act is by no means the only Act of Parliament that explicitly empowers the President or a Minister to make statutory instruments amending an Act.  The reasoning behind the decision, therefore, creates doubt about the validity of similar enabling provisions in the other Acts – and any statutory instruments made in reliance on those enabling provisions.  This includes such very recent statutory instruments as:

• SI 209/2019 of 23rd September [link] – new Standard Scale of Fines denominated in ZWL dollars
• SI 213/2019 of 27th September [link] – Presidential Powers regulations amending the Exchange Control Act – already noted in Bill Watch 50/2019 [link].

Conclusion

It seems likely that the Constitutional Court will in due course have to decide whether or not section 134 of the Constitution calls for a broad and rigid rule that a statutory instrument can never amend an Act of Parliament.  Meanwhile, the Government will have to bear in mind the risk posed by the Mlilo decision whenever enacting statutory instruments that do so.

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