QUESTION 1

Critically discuss legislation as a source of law in Zimbabwe. (25)

Law refers to rules and regulations that govern human conduct or other societal relations and
are enforceable by the state. It is the standard of enforceability by the state that distinguishes
law from other rules. There are, of course, other rules that govern human conduct like moral
rules, religious directives and organizational rules. These other rules may even be simpler in
ensuring compliance with a particular variety of conduct. They will even be more acceptable.
However, it isn't the effectiveness of rules or their goodness/badness that determines the legal
quality. It is, in fact, the sole factor of enforceability by the state that determines whether a
rule is law or not. It has been said:

Although the notion of a system of rules probably corresponds closely to most people’s idea
of law, we'll soon see that this can be often not sufficient by itself to be an accurate or
adequate account of law, because there are, in any group, various systems of rules apart from
law. How can we distinguish, for example, between a legal rule and an ethical rule? In our
society, though we consider it immoral to tell lies, it isn't generally against the law to do to
so. Of course, some moral rules are embodied within the law, just like the legal rule
prohibiting murder.

Legislation is additionally mentioned as law and covers those rules of law made directly by
the legislature. Each state has an organ answerable for law-making, and this can be often
what's mentioned because the legislature. The legislative authorities of the state promulgate
law in various statutory forms like Acts of Parliament, presidential decrees and ministerial
regulations. One must be able to identify who the legislative authorities are.

In Zimbabwe, the legislative authority is defined in Section 32 (1) of the Constitution as: The
legislative authority of Zimbabwe shall vest within the legislature which shall contain the
President and Parliament. Legislation by Parliament is embodied during a specialized written
document called an Act of Parliament. It’s only through these Acts that Parliament can make
law. Parliament is entitled to delegate its law-making powers to the president, his/ her
ministers, local authorities and other state institutions.1 When these authorities exercise this
delegated power, they create what's called ‘delegated legislation’ (subsidiary legislation)
that's embodied in specialized legal documents called ‘statutory instruments’. Accordingly,
there are two recognized varieties of legislation in Zimbabwe: Acts of Parliament and
statutory instruments. A statutory instrument has the same status as an Act of Parliament,
except that it must be consistent with the relevant Act of Parliament delegating the authority
to create that statutory instrument. When it's in step with the relevant Act, it's said to be intra
vires. The relevant Act is known as the ‘parent Act’ or the ‘enabling Act’. A statutory
instrument that's inconsistent with the statute is claimed to be ultra vires and, for that reason,
is void. For a statutory instrument to be intra vires, it must meet two requirements. First, it
must be within the powers of the delegated authority. Second, it must not be grossly
unreasonable.

Under Zimbabwean law, there's one piece of legislation that's supreme and overrides all other
laws to the contrary. This can be often the Constitution of Zimbabwe. The Constitution is
itself an Act of Parliament but its superior to any or all or the other Acts of Parliament.
Section 3 of the Constitution says that ‘[t]his Constitution shall be the supreme law of
Zimbabwe and any law which is inconsistent with it shall be void to the extent of the
inconsistency’. Accordingly, even an Act of Parliament that has been duly passed and signed
into law by the president is void if it's contrary to the Constitution.

The reason why any Constitution is given this special place within the hierarchy of laws is
that, in theory, it's considered to be the word of the people themselves. In other words, it's
legislated by the people. In many democratic systems of state, constitution-making involves
the direct participation of the people through a referendum, thus reducing the role of the
legislature to the mere formality of ‘enacting the Constitution as approved by the people’. In
countries where a referendum isn't provided for, it's normal for the enactment of a
Constitution, or amendments thereto, to want a special procedure like approval by a two-
thirds majority of the complete membership of Parliament. The latter is that the position in
Zimbabwe, where the enactment of ordinary legislation merely requires approval by a
majority of those ‘present and voting’. There is a hierarchy within the legislative source of
law: the Constitution is supreme and is followed by ordinary Acts of Parliament then by
statutory instruments. If an Act of Parliament passes the constitutionality test, it is law for all
purposes and cannot be nullified on the opposite grounds.

A statutory instrument should pass both the ultra vires test and so the constitutionality test.
Legislation could even be cited during a form of how. Three main ways are:

1. by respect to the chapter, i.e., Labour Act (Chapter 28:01).

 2. By relevance the short title and thus the year during which it had been enacted, for
example, Labour Act, 1985.

3. By relation to the short title, the calendar year and its number within the yr during which it
had been enacted, as an example , Labour Act, 1985 (Act No. 16 of 1985). Zimbabwe adopts
numbers one and three, with number three used only where there is no chapter allocation

Statutory instruments are cited in barely a way – they have no chapter number and reference
is created to the title, the calendar year and its number within the year during which it had
been gazetted. This number refers to the order of gazetting, as an example, Presidential
Powers (Temporary Measures) (Labour Relations) Regulations, 1998 (SI 368A of 1998).3
Different countries have different modes of citation for statutes. As an example, under British
system, no comma should be inserted between the word ‘Act’ and so the calendar year, i.e.,
‘Insolvency Act 1986’ and not ‘Insolvency Act, 1986’. An Act of Parliament doesn't
comprise disuse. It involves an end when it's repealed. This position is enshrined within the
Constitution. Other than being repealed, there are two other ways during which an Act of
Parliament may come to an end. The first is where it's found to be void for being inconsistent
with the Constitution. The second is through the effluxion of sometime in situations where an
Act is meant to be of limited duration. As an example, a statute may provide that it shall
remain effective until a given date.
REFERENCES

D.A. Reynolds and J.A. Russel (1983) An Introduction to Law. Government of Zimbabwe:
Ministry of Justice.

Bryon A. Garner (ed.) (2004) Black’s Law Dictionary. Eighth edition. Eagen, MS: Thomson
West

F.A.R. Bennion (2002) Statutory Interpretation, Fourth edition. London: Lexis Nexis
Butterworths