By Nyashadzashe Ndoro | Nehanda Courts |
War veteran Fredrick Matanda has filed a fresh application challenging President Emmerson Mnangagwa’s use of Statutory Instrument (SI) 127 of 2021 which penalises businesses that refuse to accept the Zimbabwe dollar or quote prices above the official exchange rate.
Matanda, a businessman said the Presidential Powers (Temporary Measures) Act that was recently used by Mnangagwa to amend the Exchange Control Act and the Bank Use Promotion Act through (SI) 127 of 2021, was unconstitutional and in breach of the country’s Constitution.
“I, therefore, seek an order that the Act be set aside or in the alternative that Section 2 (2) of the Act be and is hereby declared null and void,” he argues in his application. “Once the Act is set aside, it follows that the Regulations, SI 127/2021 become a nullity and must be set aside.
“However, the regulations themselves, to the extent that they create offences and empower the Reserve Bank to impose punishment without due process, are clearly a breach of the citizens, right to equal protection and benefit of the law as protected by Section 56 (1) of the Constitution and further a breach of the rights protected under sections 68 and 69 of the Constitution of Zimbabwe.
“Thus, even assuming that the President’s powers to make the regulations were lawful, the Regulations themselves on their own infringe Section 56, Section 68 and 69 of the Constitution. This is the nub of the instant application.
The key provisions of the SI 127 of 2021 which was gazetted on May 26, 2021, were the temporary measures prohibit businesses from selling goods and services or quoting at an exchange rate above the ruling auction market rate, issuing buyers with a Zimbabwean dollar receipt for payment received in foreign currency, giving buyers a discount for paying in foreign currency and it sets out penalties for businesses and individuals that refuse to accept payment in the Zimbabwe dollar at the ruling auction market rate.
But Matanda said the move was “flagrant and blatant breach of constitutionalism”, citing in particular, the right to equal protection and benefit of the law codified in section 56 (1) of the Constitution, the right to be heard before an adverse decision is taken as codified in Section 68, and the right to a fair trial in criminal matters as protected by section 69 of the constitution of Zimbabwe.
He added: “In other words, the President is not the Legislature. My view, therefore, is that to the extent that the Act allows the President to encroach and exercise a law-making function, then the same is clearly a breach of the Constitution. In the same vein, I do not believe that the powers to make ordinary, non-legislative regulations also exist. “
Meanwhile, in May, Matanda successfully challenged Constitutional Amendment No. 2 that extended Luke Malaba’s term of office as chief justice by another five years.