Indigenisation policy’s dubious legality

The Indigenisation and Economic Empowerment Act and the Statutory Instruments and General Notices that flowed from it can be challenged on each of two alternative constitutional grounds. The first ground arises from the failure of President Robert Mugabe to assent to the Act within 21 days of its being presented to him.

Legal Correspondent.

Architect of indigenisation policies ... Saviour Kasukuwere
Architect of indigenisation policies … Saviour Kasukuwere

The second ground arises from the failure by cabinet and then parliament to accept the Act’s subsidiary legislation before promulgation.

So far as the first ground is concerned, Section 51 of our constitution at the time provided, among other things, that: “(2) When a Bill is presented to the president for assent he shall, subject to the provisions of this section, within 21 days, either assent or withhold his assent.

“(3a) Where the president withholds his assent to a Bill, the Bill shall be returned to parliament and, subject to the provisions of subsection (3b), the Bill shall not again be presented for assent.

“(3b) If, within six months after a Bill has been returned to parliament in terms of subsection (3a), parliament resolves upon a motion supported by the votes of not less than two-thirds of all the Members of Parliament that the Bill should again be presented to the president for assent, the Bill shall be so presented and, on such presentation, the president shall assent to the Bill within 21 days of the presentation, unless he sooner dissolves parliament.”

The Indigenisation and Economic Empowerment Bill that was passed by parliament was published in the Government Gazette of June 22 2007 and it was immediately then presented to the president.

Mugabe failed to assent to the Bill within 21 days of its being presented to him.

This averment of failure is not conjecture: on January 29 2008, the Clerk of Parliament, Austin Zvoma, was reported as saying that in terms of parliamentary procedures and regulations the Indigenisation and Economic Empowerment Bill (the precursor to the Act) lapsed when parliament ceased to sit and the new government would have to decide whether or not to introduce it again.

Simple grammar

The simple grammatical meanings of “withhold” are “refrain from putting into action”, “refuse to grant” and “hold back”:

The president would hardly have forgotten the provisions of the constitution or forgotten to give his assent to such an important piece of legislation and so he must have deliberately failed to give his assent to the Bill within the requisite 21-day period.

If the argument is raised that it does not matter when the president gives his consent to a Bill, so long as he eventually gives his assent (no matter what delay is involved: what if he delays giving his assent for five years, instead of five months, would the position be any different?), accepting this argument would make a mockery of sub-sections (3a) and (3b) of the constitution. They were not enacted with a view to their being disregarded. Effect must be given to them.

Incidentally, the failure of the president to observe the provisions of Section 51(2) of the constitution in relation to the Indigenisation and Economic Empowerment Bill was not an isolated failure. For example, on February 11 2011, the then Minister of Finance, Tendai Biti, was reported as accusing Mugabe of frustrating the enactment of the Public Finance Management Act by “sitting” on it since June 2010, despite various letters that had been written to his office.

Eventually, in early March 2008, Mugabe purported to assent to the Bill and the Act was published in the Government Gazette of March 7 2008.

Mugabe’s purported assent was given on a date shortly before the March 2008 parliamentary and presidential elections, giving rise to the perception on the part of some observers that it had been deliberately delayed and then given on that date for political reasons.

Although he withheld his assent for more than the 21 days allowed by Section 51(2) of the constitution, the Bill was never returned to parliament, despite the fact that Section 51(3a) made this compulsory.

Because of this failure to return the Bill to parliament, there was no opportunity for parliament to resolve, on a two-thirds majority of all of its members, to again present the Bill for presidential assent.

Section 53 (1) of the then constitution provided that:

“(1) As soon as may be after an Act of Parliament has been assented to by the president, the Clerk of Parliament shall cause a fair copy of the Act, duly authenticated by the signature of the president and the public seal, to be enrolled on record in the office of the: Registrar of the High Court and such copy shall be conclusive evidence of the provisions of such Act.”

There is no reason to suppose that the Clerk of Parliament delayed in enrolling the Act as soon as the president purportedly assented to the Bill. Clearly, because of its legislative and political importance, the Act was enrolled by the Clerk of Parliament immediately after the purported presidential assent was given.

It should be noted that Section 53(1) did not say that the enrolment of an Act was conclusive evidence that it had been duly made. It said merely that the terms of what was enrolled would be conclusive evidence of the provisions of the enactment.

Because of Mugabe’s failure to give his assent timeously, his assent was invalid and so the enrolment of a fair copy of the Act was of no consequence.

As the Speaker of Parliament said at the time, the Bill lapsed. It could not become an Act.

Section 32(1) of the Interpretation Act provides that:

“(1) It shall be presumed, unless the contrary is proved, that any enactment which has been published in the Gazette or the Federation of Rhodesia and Nyasaland Government Gazette has been duly made, and all courts shall take judicial notice of any such enactment.”

Given that the Act was published in the Government Gazette of March 7 2008, the presumption arose that the Act had been duly made — but it was only a presumption. Clearly, the Act had not been “duly made”. Equally clearly, it has always been possible (to adapt the wording of Section 32) to prove the contrary of the presumption that the Act was duly made.

In opposition to what is suggested above, the argument has been offered that the failure of the president to give his assent timeously was only a contravention of the constitutional requirement that such assent be given within the 21-day period in question and the Act itself did not contravene the constitution, so the Act cannot be challenged.

It is correct that the Act itself would not have contravened the constitution if it had become law, but that is beside the point.

The point is that Section 51(3a) of the constitution made it mandatory for the Bill to be returned to parliament if the president failed to give timeous assent, and Section 51(3b) went on to say how the Bill could then become law. Section 51(3b) would not have done this if the Bill was already law.

The second ground relates to the Act’s subsidiary legislation, which can be challenged on the basis that the president’s cabinet and then parliament had to accept such legislation before promulgation.

Article 20.1.2(c) of Schedule 8 of the constitution, which was inserted by Act number 1 of 2009 and came into effect on February 13 2009, stated that cabinet would have “the responsibility to prepare and present to parliament all such legislation and other instruments as may be necessary to implement the policies and programmes of the national executive”.

This meant that legislation such as the regulations that were made under the Act first had to be presented to and accepted by cabinet, irrespective of the fact that they were subsidiary legislation, and that they then had be presented to and approved by parliament.

This is the stance that was initially adopted by then prime minister Morgan Tsvangirai, who averred that the regulations were null and void because the prior approvals of the cabinet and parliament were not obtained. His apparent subsequent retraction of this stance did not mean that it was incorrect. If his earlier stance was indeed correct, the regulations were unconstitutional.

Even if retrospective decisions had been taken by the then prime minister and cabinet (but not by parliament) to approve the regulations, this would not have legitimised them if they were unconstitutional in the first place.

Some commentators have also argued that the regulations offend against the provisions of the constitution which effectively forbid racial discrimination; which forbid the compulsory deprivation of property; which are meant to afford freedom of association to the owners of businesses; and/or which require recourse to the courts in the event of disputes. These arguments are not debated here.

Nor is the argument that the indigenisation minister then Saviour Kasukuwere, who promulgated the regulations, was not constitutionally appointed and so his regulations were a nullity.

Nor is the argument that the regulations were in part improperly promulgated because the requirement for consultation with the correct ministers was not observed.

Nor is the argument that much of the regulations is ultra vires their enabling Act and that all of the General Notices are ultra vires their enabling regulations.

These further arguments are mentioned in passing in order to make known the fact that other challenges to the legislation can be made, in addition to the two constitutional challenges referred to earlier on.