Delegation to Executive of Primary Law Making Power

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An important question that arises is whether it is constitutional for Parliament to delegate to the President or the Executive the power to amend legislation passed by Parliament.

 

In South Africa the Constitutional Court has ruled in the case of Executive Council Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) that it is unconstitutional for Parliament to delegate to the President or executive the power to amend or repeal Acts of Parliament when there is no state or emergency and such delegation was not justified by urgent necessity. The court said that delegating to the Executive the power to amend or repeal Acts of Parliament was quite different to delegating subordinate legislative powers. Under the Constitution it is Parliament that is given the power to make and amend legislation.

 

In Zimbabwe the President had wide powers to make regulations under the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. Under this Act the President could make regulations that overrode other laws (including Acts of Parliament.) These regulations lasted for six months. The President could make such regulations–

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where it appeared to him that a situation has arisen or was likely to arise which needed to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

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the situation could not adequately be dealt with in terms of any other law; and

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because of the urgency, it was inexpedient to await the passage through Parliament of an Act dealing with the situation.(s 2)

 

The regulations had to be laid before Parliament within 8 days of when Parliament next sat after the regulations had been made and if Parliament resolved that the regulations should be amended or repealed, the President had to do this. (s 4)

 

The Act provides that Presidential regulations would prevail over any other law to the contrary to the extent of any inconsistency with such law. (s 5)These powers, which are available to the President even when there was no declared state of emergency.

 

The Presidential Powers (Temporary Measures) Act is clearly unconstitutional as section 134(a) now emphatically lays down that Parliament must not delegate its primary law-making power.