Constitution Watch 8/2019
Can Statutory Instruments Amend
Acts of Parliament?
19 October 2019
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 lawmaking 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