I must add, however, an important point regarding the moral hazard by SI 101A in so far as the protection of the Constitution is concerned. There can be no doubt that SI 101A is a serious and fundamental derogation on all the rights articulated in this article. The fact that SI 101A is subsidiary legislation effectively amounts to amending the Declaration of Rights by stealth. The Constitution has robust safeguards against reckless, ill-considered and malicious amendments. One of that any provision of the Declaration of Rights can only be amended by two thirds majority of Parliament. The other is that any such amendment must be approved at a referendum. The third is that any amendment of the Declaration of Rights must be an improvement and not a reduction of rights that are already provided for. The fourth is that primary legislation can only be made by Parliament, a power that cannot be delegated.
However, to the extent that the effect of S1 101A is to reduce fundamental rights, this is an amendment of the Constitution by stealth. It is worse that it is being done by a police officer. If government wants to amend the Declaration of Rights, it must follow the right channels. Allowing SI 101A to stand presents a serious moral hazard as the government will no longer bother with the formal and deliberately cumbersome route of amending the Constitution. It will, instead, escalate the use of statutory instruments, which presents a mortal danger to the Constitution, constitutionalism and the rule of law.
There is no doubt in my mind that SI 101A is unconstitutional. It is the most serious and reckless assault upon Zimbabwe’s three-year old Constitution. If anything, the Superintended has declared a mini-state of emergency in central Harare. He is invoking powers that he does not have. If President Mugabe wants to declare a state of emergency, then he must do so using the constitutional provisions, not delegate such authority to a police officer. As I have stated, the easiest ground to dismiss SI 101A is that it violates section 134(b.) of the Constitution, which prohibits statutory instruments from contravening fundamental rights. The second is that it violates the right to human dignity, which is an inviolable right. The third is that it violates a host of other rights, which while limitations may be permitted, SI 101A fails to pass the constitutional test under section 86(2) of the Constitution. Finally, if the courts allow it to stand, they would have opened the floodgates of similar subsidiary legislation, which the government will use to undermine the Declaration of Rights and circumvent the tough amendment provisions of the Constitution. That would be a serious hazard to Zimbabwe's already struggling democracy.
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