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Home » A GUIDE TO ADMINISTRATIVE AND LOCAL GOVERNMENT LAW IN ZIMBABWE » ADMINISTRATIVE LAW » Delegation to
Executive of Primary Law Making Power

Delegation to More like

Cover Page
Preface
ADMINISTRATIVE LAW
Executive of Primary this
Law Making Power
Nature of
Delegated or Subsidiary
Administrative Law
Legislation
The Public Service
S v Makamba (HH 38-
Delegated or 2004) [2004] ZWHHC 38
Subsidiary Legislation An important question that arises is whether it is
(14 February 2004);
constitutional for Parliament to delegate to the President
Delegation to Mlilo v The President of
or the Executive the power to amend legislation passed by
Executive of Primary the Republic of
Parliament.
Law Making Power Zimbabwe (HH 236-18,
Sub-Delegation   HC 9829/17) [2018]
Administrative In South Africa the Constitutional Court has ruled in the ZWHHC 236 (04 May
Decision-Making case of Executive Council Western Cape Legislature v 2018);
President of the Republic of South Africa 1995 (4) SA 877 Kuchera and Others v
Administrative
(CC) that it is unconstitutional for Parliament to delegate to Minister Of Justice,
Tribunals
the President or executive the power to amend or repeal Legal And
The Administrative Acts of Parliament when there is no state or emergency Parliamentary A airs
Court and such delegation was not justi ed by urgent necessity. (HC 1727/08) [2008]
New constitutional The court said that delegating to the Executive the power ZWHHC 36 (27 March
guarantee of to amend or repeal Acts of Parliament was quite di erent 2008);
administrative justice to delegating subordinate legislative powers. Under the
Tsvangirai v Registrar
Constitution it is Parliament that is given the power to
Appeals Against General of Elections
make and amend legislation.
Administrative and Others (76/02)
Decisions   ((76/02)) [2002] ZWSC
Judicial Review 20 (03 April 2002);
In Zimbabwe the President had wide powers to make
Locus Standi in regulations under the Presidential Powers (Temporary
judicio for Bringing Measures) Act [Chapter 10:20]. Under this Act the President
Review could make regulations that overrode other laws (including
Natural Justice Acts of Parliament.) These regulations lasted for six
months. The President could make such regulations–
Hearing - Audi
alteram partem Ø 

Bias - Nemo judex in where it appeared to him that a situation has arisen or was
sua causa likely to arise which needed to be dealt with urgently in the
Ultra vires decisions interests of defence, public safety, public order, public
morality, public health, the economic interests of
Improperly
Zimbabwe or the general public interest; and
constituted tribunals
Ø 
Ultra vires action
Bodies given the situation could not adequately be dealt with in terms of
legislative powers by any other law; and
Constitution Ø 
Prerogative powers
because of the urgency, it was inexpedient to await the
The Zimbabwe passage through Parliament of an Act dealing with the
Human Rights situation.(s 2)
Commission
 
Remedies
The regulations had to be laid before Parliament within 8
Vicarious liability of
days of when Parliament next sat after the regulations had
the State
been made and if Parliament resolved that the regulations
State Privilege should be amended or repealed, the President had to do
LEGISLATION this. (s 4)

LIST OF CASES  
LOCAL GOVERNMENT The Act provides that Presidential regulations would prevail
LAW 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.

‹ Delegated or up Sub-Delegation ›
Subsidiary Legislation

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