An Introduction to Zimbabwean Law

2. Sources of Law

13 SOURCES OF LAW Legislation Legislation is also referred to as statutory law and covers those rules of law made directly by the legislature. Each state has an organ responsible for law-making, and this is what is referred to as the legislature. The legislative authorities of the state promulgate law in various statutory forms such as Acts of Parliament, presidential decrees and ministerial regulations . One must be able to identify who the legislative authorities are. In Zimbabwe, the legislative authority is defined in Section 32 (1) of the Constitution as: The legislative authority of Zimbabwe shall vest in the legislature which shall consist of the President and Parliament. Legislation by Parliament is embodied in a specialized legal document called an Act of Parliament. It is only through these Acts that Parliament can make law. Parliament is entitled to delegate its law-making powers to the president, his/ her ministers, local authorities and other state institutions.1 When these authorities exercise this delegated power, they create what is called ‘delegated legislation’ (subsidiary legislation) that is embodied in specialized legal documents called ‘statutory instruments’. Accordingly, there are two recognized forms of legislation in Zimbabwe: Acts of Parliament and statutory instruments. A statutory instrument has the same legal status as an Act of Parliament , except that it must be consistent with the relevant Act of Parliament 2 Sources of Law 14 SOURCES OF LAW delegating the authority to make that statutory instrument. When it is consistent with the relevant Act, it is said to be intra vires. The relevant Act is called the ‘parent Act’ or the ‘enabling Act’. A statutory instrument that is inconsistent with the enabling Act is said to be ultra vires and, for that reason, is void. For a statutory instrument to be intra vires, it must meet two requirements. First, it must be within the powers of the delegated authority. Second, it must not be grossly unreasonable.2 Under Zimbabwean law, there is one piece of legislation that is supreme and overrides all other laws to the contrary. This is the Constitution of Zimbabwe. The Constitution is itself an Act of Parliament but it is superior to all other Acts of Parliament. Section 3 of the Constitution says that ‘[t]his Constitution shall be the supreme law of Zimbabwe and any law which is inconsistent with it shall be void to the extent of the inconsistency ’. Accordingly, even an Act of Parliament that has been duly passed and signed into law by the president is void if it is contrary to the Constitution . The reason why any Constitution is given this special place in the hierarchy of laws is that, in principle, it is considered to be the word of the people themselves. In other words, it is legislated by the people. In many democratic systems of government, constitution-making involves the direct participation of the people through a referendum, thus reducing the role of the legislature to the mere formality of ‘enacting the Constitution as approved by the people’. In countries where a referendum is not provided for, it is common for the enactment of a Constitution, or amendments to it, to require a special procedure such as approval by a two-thirds majority of the total membership of Parliament. The latter is the position in Zimbabwe, where the enactment of ordinary legislation merely requires approval by a majority of those ‘present and voting’. There is a hierarchy within the legislative source of law: the Constitution is supreme and is followed by ordinary Acts of Parliament and then by statutory instruments. If an Act of Parliament passes the constitutionality test, it is law for all purposes and cannot be nullified on any other grounds. A statutory instrument should pass both the ultra vires test and the constitutionality test. Legislation may be cited in a variety of ways. Three main ways are: 1. By reference to the chapter, i.e., Labour Act (Chapter 28:01). 2. By reference to the short title and the calendar year in which it was enacted, for example, Labour Act, 1985. 15 SOURCES OF LAW 3. By reference to the short title, the calendar year and its number in the calendar year in which it was enacted, for example, Labour Act, 1985 (Act No. 16 of 1985). Zimbabwe adopts numbers one and three, with number three used only where there is no chapter allocation. Statutory instruments are cited...