An Introduction to Zimbabwean Law

4. The Law-Making Process

43 THE LAW-MAKING PROCESS Introduction: State organs and their powers The starting point to understanding state organs and their powers is to recall an oft-quoted statement from the opening paragraphs of the 1776 American Declaration of Independence: We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that … it is the right of the people … to institute new government , laying its foundation on such principles, and organising its power in such form, as to them seem most likely to effect their safety and happiness. This statement emphasizes the fact that the power of governmental organs is necessarily limited and defined by the society that creates the government . There is thus no magic in the powers of state organs; their power is given and defined by the people. Every society has rules that define the structures of the state and spell out their powers. These rules may be written or unwritten, or a combination of both. A totality of these rules make up what is called the Constitution of a country. The law emanating from such rules is called constitutional law. Professor Peter Hogg has aptly described constitutional law as follows: Constitutional law is the law prescribing the exercise of power by the organs of a state. It explains which organs can exercise legislative power (making new laws), executive power (implementing the laws) and judicial power (adjudicating disputes) and what the limitations of those powers are …. Civil liberties 4 The Law-Making Process 44 THE LAW-MAKING PROCESS are also part of constitutional law because civil liberties may be created by the rules that limit the exercise of governmental power over individuals.1 Indeed, in most countries, including Zimbabwe, the rules defining the structure and powers of governmental organs are embodied in its Constitution . It is mainly to these documented rules that reference should be made in order to understand the powers of state organs. Answers to the following questions are all a matter of constitutional law: Which organ(s) make(s) law? What are the requisite law-making processes? Constitutional law utilizes the principle of separation of powers. In its classical sense, this principle of separation of powers requires that, as a guarantee for the liberty of the individual, political power should not be concentrated in one individual or organ of government. It requires that governmental functions be separated into three different groups and each be performed by different persons. This is thought to be a way of creating ‘checks and balances’ by one organ against another. The three main governmental organs are the legislature, the executive and the judiciary. Thus, the organ that makes law (the legislature) should be different from the organ which implements it (the executive) and should both be different from the organ which interprets it in the event of a dispute (the judiciary). Although Zimbabwe has adopted the basic framework of creating three state organs in terms of the principle of separation of powers, it has not fully embraced the strict separation of functions of government into different organs and individuals. A brief description of the structure and functions of the key state organs is essential for an understanding of the law-making process. The legislature (the law-makers) A principal function of the state is that of making laws for the proper ordering of society. The popular conception of governance is that of making laws to be observed in and by the community. This important function of the state is allocated to the legislature, which in Zimbabwe consists of Parliament and the president.2 Parliament itself is composed of two chambers: the House of Assembly (Lower House) and the Senate (Upper House). For a law to be said to be a law made by the legislature in Zimbabwe, it must pass through two stages. First, it must be passed by the requisite majority in both houses of Parliament. Second, once it has been passed 45 THE LAW-MAKING PROCESS by Parliament, it should be assented to by the president before it becomes law.3 This second stage makes the president very much part of the legislature in Zimbabwe. The president...