On
the
15th
April
the
Minister
of
Finance,
Economic
Development
and
Investment
Promotion
published statutory
instrument
34
of
2025
in
the
Gazette
with
a
rather
convoluted
title:
the
Exchange
Control
(Amendment
of
Schedule
to
the
Exchange
Control
Act)
(Repeal)
Notice,
2025.
The
instrument,
which
for
convenience
we
shall
refer
to
as
just SI
34
of
2025,
can
be
accessed
on
the
Veritas
website [link].
It
repeals
an
earlier
notice,
SI
81A
of
2024,
which
can
also
be
accessed
on
the
website [link].
According
to
press
reports,
the
effect
of
SI
34
of
2025
is
to
repeal
an
earlier
law
that
required
businesses
to
abide
by
the
official
exchange
rate
when
pricing
goods
and
services.
As
a
result
of
the
repeal,
the
press
reports
suggest,
businesses
will
be
able
to
use
the
market
rate
between
US
dollars
and
ZiGs
for
pricing
purposes.
Business
leaders
have
welcomed
the
reform,
saying
it
is
a
positive
and
long
overdue
move
which
will
remove
a
very
big
distortion
in
the
marketplace.
Unfortunately,
their
enthusiasm
is
misplaced.
SI
34
of
2025
does
not
change
anything.
The
law
remains
as
it
was.
To
explain
why,
we
need
to
give
a
bit
of
the
background
to
the
SI.
Background
to
SI
34
of
2025
The
Exchange
Control
Act
has
a
Schedule
dealing
with
civil
penalty
orders,
i.e.
orders
issued
by
the
Reserve
Bank
imposing
penalties
for
“civil
infringements”
which
are
set
out
in
paragraphs
2
and
3
of
the
Schedule.
Section
11
of
the
Act
gives
the
Minister
of
Finance
power
to
amend
the
Schedule
by
statutory
instrument,
but
before
doing
so
he
must
comply
with
subsection
(3)
of
the
section;
that
is
to
say,
he
must
lay
a
draft
of
the
instrument
before
the
National
Assembly
and
give
the
Assembly
seven
sitting
days
to
decide
whether
to
pass
a
resolution
that
the
instrument
should
not
be
published.
If
the
Assembly
does
not
pass
such
a
resolution,
then
the
Minister
must
publish
the
instrument
in
the Gazette.
Paragraphs
2
and
3
of
the
Schedule,
as
we
have
said,
set
out
various
civil
infringements
that
may
be
the
subject
of
civil
penalty
orders.
In
May
last
year
the
Minister
published
SI
81A
of
2024,
which:
-
created
a
new
civil
infringement
consisting
of
offering
goods
or
services
at
an
exchange
rate
above
the
prevailing
average
interbank
foreign
currency
selling
rate
published
by
the
Reserve
Bank,
and -
provided
for
the
civil
penalty
that
can
be
imposed
for
the
new
infringement.
Now
the
Minister
has
published
SI
34
of
2025,
which
simply
states:
“The
Exchange
Control
(Amendment
of
Schedule
to
the
Exchange
Control
Act)
Notice,
2024,
published
in
Statutory
Instrument
81A
of
2024,
is
hereby
repealed.”
The
instrument
does
not
explain
what
the
Minister
intended
to
achieve,
but
presumably
he
wanted
to
abolish
the
civil
infringement
created
by
SI
81A
of
2024.
If
so,
he
did
not
succeed,
for
two
reasons.
SI
34
of
2025
Was
Not
Properly
Enacted
We
have
already
explained
that
before
the
Minister
publishes
a
statutory
instrument
amending
the
Schedule
to
the
Exchange
Control
Act,
he
must
allow
the
National
Assembly
seven
sitting
days
within
which
to
object
to
a
draft
of
the
instrument.
This
is
laid
down
in
section
11(3)
of
the
Act.
So
far
as
we
can
ascertain,
the
Minister
never
did
this.
Members
of
the
Assembly
whom
we
have
contacted
cannot
recall
him
laying
a
draft
of
SI
34
of
2025
before
the
House,
and
we
cannot
find
a
record
of
his
doing
so
in
the
Assembly’s
Votes
and
Proceedings. [When
papers
are
laid
before
the
Assembly,
i.e.
tabled,
that
fact
is
noted
in
Votes
and
Proceedings]
If
indeed
the
Minister
did
not
table
a
draft
of
the
SI
in
the
National
Assembly,
that
would
render
SI
34
of
2025
completely
invalid.
Generally
it
is
undesirable
for
Ministers
to
be
given
power
to
amend
Acts
of
Parliament:
it
violates
the
principle
of
separation
of
powers,
which
states
that
Parliament
should
normally
be
responsible
for
enacting
legislation,
the
judiciary
responsible
for
adjudicating
legal
disputes,
and
the
Executive
(the
President
and
his
Ministers)
responsible
for
administering
the
laws
of
the
country.
In
at
least
one
case
in
this
country
the
High
Court
has
held
that
a
statutory
provision
which
gave
a
Minister
power
to
amend
an
Act
of
Parliament
violated section
134
of
the
Constitution
because
it
amounted
to
a
delegation
of
Parliament’s
primary
law-making
power.
This
means
that
if
Parliament
has
laid
down
conditions
giving
itself
power
to
scrutinise
and
veto
a
Minister’s
proposed
amendments
to
an
Act
of
Parliament
(and
Parliament
has
done
just
that
in
section
11(3)
of
the
Exchange
Control
Act),
those
conditions
must
be
observed
scrupulously.
If,
as
seems to
be
the
case,
the
Minister
did
not
observe
the
conditions
laid
down
in
section
11(3)
before
publishing
SI
34
of
2025,
then
the
SI
is
void.
Anyway,
SI
34
of
2025
is
Ineffective
Even
if
it
turns
out
that
SI
34
of
2025
was
laid
before
the
National
Assembly,
it
is
completely
ineffective
in
its
presumed
aim
of
allowing
goods
to
be
priced
according
to
market
rates
of
exchange.
As
we
have
said,
all
SI
34
of
2025
does
is
to
repeal
an
earlier
SI
which
amends
the
Schedule
to
the
Exchange
Control
Act.
In
other
words,
SI
34
of
2025
does
not
itself
amend
the
Schedule,
it
simply
repeals
an
earlier
SI
that
amended
the
Schedule.
This
does
not
have
the
effect
of
repealing
the
earlier
amendment,
because
when
an
enactment
amends
another
enactment
the
amendment
is
incorporated
into
the
enactment
being
amended
(the
parent
Act)
and
becomes
part
and
parcel
of
it.
Once
the
amendment
has
been
incorporated,
the
amending
enactment
can
be
repealed
without
affecting
the
parent
Act.
This
principle
was
expressed
rather
picturesquely
by
a
court
in
India,
where
the
law
on
the
point
is
the
same:
“The
purpose
of
an
amending
Act
is
to
plant
the
necessary
amendments
in
the
parent
or
the
main
Act,
and
once
such
planting
has
been
effected,
the
planting
Act
(the
amending
Act),
having
served
its
purpose
need
not
any
more
remain
there
to
tend
the
plant,
as
it
were;
the
plant
has
taken
root
in
the
main
Act.
…
[I]f
an
amending
Act
is
…
repealed
by
a
repealing
Act,
the
amendment
does
not
affect
the
plant,
the
amendment
already
planted
in
the
main
Act.”
So
even
though
the
Minister
may
have
repealed
his
earlier
SI
–
SI
81A
of
2024
–
the
amendments
made
by
that
earlier
SI
remain
in
the
Schedule
to
the
Exchange
Control
Act.
Hence
it
is
still
a
civil
infringement
for
businesses
to
price
their
goods
and
services
using
an
exchange
rate
different
from
the
official
one.
Conclusion
If
the
Minister
wants
to
allow
businesses
to
use
the
market
rate
of
exchange
for
pricing
purposes,
he
should
without
delay
publish
a
new
SI
specifically
and
clearly
amending
the
Schedule
to
the
Exchange
Control
Act
so
as
to
repeal
the
provisions
inserted
by
SI
81A
of
2024.
Before
doing
so
he
should
be
careful
to
observe
scrupulously
the
conditions
laid
down
in
section
11(3)
of
the
Act,
i.e.
to
lay
a
draft
before
the
National
Assembly
prior
to
publishing
it.
The
Minister
might
also
consider
getting
his
officials
to
look
at
other
orders
and
directions
made
under
the
Exchange
Control
Act
–
SI
255B
of
2000 [link] and
SI
223
of
2002 [link] for
example
–
to
see
if
they
need
amending
or
repealing
in
order
to
give
effect
to
the
new
policy
of
liberalisation.
He
and
his
officials
should
remember
that
statutory
instruments
remain
in
force
until
they
are
repealed;
they
do
not
cease
to
exist
simply
because
official
policy
has
changed.
In
the
meantime,
businesses
should
continue
using
the
official
exchange
rate
when
pricing
their
goods
and
services,
and
should
not
rely
on
any
assurances
the
Minister
may
have
given
them
that
they
can
use
a
different
rate.
If
they
use
a
rate
other
than
the
official
one
they
will
be
committing
a
civil
infringement
and,
whether
or
not
the
Reserve
Bank
serves
a
civil
penalty
order
on
them,
the
prices
they
fix
will
be
illegal
–
which
means
that
if
buyers
default
on
payment
the
sellers
will
not
be
able
to
seek
recourse
through
the
courts.
Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied.
Post
published
in:
Business