Innocent Gonese v Minister of Finance and Economic Development

The applicant, a Member of Parliament, human rights lawyer and constitutional rights activist, challenged the constitutionality of section 3 of the Finance Act [Chapter 23:04] and two statutory instruments (SI 123A of 2020 and SI 145 of 2020) made by the respondent Minister of Finance and Economic Development. Section 3 of the Finance Act allowed the Minister to make regulations necessary for administering the Act, including the power to amend or replace any rate of tax, duty, levy or other charge. The Minister published SI 123A of 2020 and SI 145 of 2020, which amended sections 22E and 22H of the Finance Act relating to carbon tax and the NOCZIM Debt Redemption and Strategic Reserve Levy. The amendments created differential tax rates based on whether fuel was imported using free funds or otherwise. The applicant contended that the Minister was amending Acts of Parliament through subsidiary legislation and creating new taxes, which was the preserve of Parliament.

• Whether section 3(2) of the Finance Act is unconstitutional in that it allows regulations made by the Minister to override or amend an Act of Parliament
• Whether SI 123A of 2020 and SI 145 of 2020 are unconstitutional in that they allow the Minister to amend an Act of Parliament and create new taxes
• Whether the delegation of power under section 3(2) violates the principle of separation of powers enshrined in section 3(2)(e) of the Constitution
• Whether section 3(2) is consistent with section 134(a) read with section 117(2)(c) of the Constitution of Zimbabwe

1. Section 3(2) of the Finance Act [Chapter 23:04] declared inconsistent with section 134(a) as read with section 117(2)(c) of the Constitution of Zimbabwe and consequently unconstitutional. 2. SI 123A of 2020 declared a nullity and set aside. 3. SI 145 of 2020 declared a nullity and set aside. 4. The Registrar of the High Court shall place the judgment before the Constitutional Court for confirmation of the order of invalidity. 5. Each party to bear its own costs of suit.

Parliament's primary law-making power, including the power to make, amend and repeal laws, is non-delegable under section 134(a) of the Constitution of Zimbabwe read with section 117(2)(c). The Legislature cannot delegate to the Executive or other subordinate bodies the power to amend or repeal Acts of Parliament or provisions thereof through statutory instruments or subsidiary legislation. Any provision in an Act that purports to confer such powers on a Minister or other authority is unconstitutional and inconsistent with the Constitution. Once rates of tax, duty, levy or other charges are made by Parliament in an Act of Parliament in the exercise of its primary law-making role, only Parliament is empowered to amend or repeal those provisions. Statutory instruments made under an unconstitutional provision that purports to delegate such primary law-making powers are themselves invalid and must be set aside.

The court observed that section 3(3) of the Finance Act, which requires regulations to be laid before Parliament for confirmation, is intended to subject to Parliamentary scrutiny the exercise of powers by the Minister in respect of those matters in which the Minister is legitimately acting under delegated authority as permitted by the Constitution. It is consistent with section 134(f) of the Constitution which requires statutory instruments to be laid before the National Assembly for scrutiny by the Parliamentary Legal Committee. However, this safeguard does not cure the constitutional defect in section 3(2) which impermissibly delegates primary law-making powers. The court also noted that it cannot arrogate to itself the exercise of powers that are constitutionally a preserve of another arm of Government, and therefore declined to amend section 3 itself, as this would be the prerogative of the Legislature. The court recognized this as public interest litigation and considered costs accordingly, ordering each party to bear its own costs rather than awarding costs on the higher attorney-client scale as requested by the applicant.

This case is significant in Zimbabwean constitutional jurisprudence as it reaffirms the principle of separation of powers and the limits on Parliament's ability to delegate legislative authority. It establishes that Parliament cannot delegate its primary law-making powers, including the power to amend or repeal Acts of Parliament, to the Executive through subsidiary legislation. The judgment reinforces the supremacy of the Constitution and the non-delegable nature of Parliament's core legislative function as enshrined in sections 117 and 134 of the Constitution. It provides important guidance on the permissible scope of delegated legislative powers in the context of taxation law and fiscal policy, distinguishing between legitimate subordinate legislation and impermissible delegation of primary law-making authority. The case also demonstrates the court's willingness to scrutinize executive action in the sphere of taxation and fiscal policy where constitutional principles are at stake.