12 July 2012

Zimbabwe: Council Fines Illegal - Parly

The Parliament's Legal Committee has declared all forms of fines charged by local authorities through by-laws as unconstitutional.

The committee said only a court of law, has the mandate to impose fines that exceed Level Three (US$20).

Councils, the committee noted, could only impose fines below US$20, which would also be subjected to court reviews.

This means that council fines for clamping and towing vehicles are illegal because they do not go through the judicial system.

However, the Urban Councils Association of Zimbabwe dismissed the assertions saying there was no provision in their by-laws to go through the court process.

Ucaz president and Masvingo City Council Mayor Femias Chakabuda urged legislators to understand council by-laws.

"Our fines are gazetted, our MPs should learn to read our by-laws so that they know because there is no provision that we are supposed to go through court processes," Mayor Chakabuda said.

"When we gazette those fines they don't say anything, they only raise these arguments when there is a problem. Each MP is from a local authority and they are under a councillor so they should interact with them."

Harare City charges about US$56 for clamping vehicles and US$120 for towing the vehicle away.

The reservations are contained in the committee's adverse report on some Statutory Instruments for various local authorities of 2012.

Mazowe Central legislator, Mr Shepherd Mushonga (MDC-T) chairs the committee.

The Criminal Procedure and Evidence Act, the committee said, was there to afford an accused person the right to protection of the law as envisaged in Section 18 of the Constitution.

"In terms of Section 271 (2) of the said Act, a fine above level 3 (US$20) can only be imposed by a court of law after the presiding officer has canvassed the essential elements of the offence from the accused person and satisfied himself or herself that the accused has understood the said essential elements and is indeed pleading guilty," reads the report.

The committee said even in cases where an accused person opts to pay an assessed fine instead of appearing in court, it was the court that has a final say on the matter.

"The spirit of Section 18 is that all criminal convictions should be that of a court of law, established by law. Anything ultra vires this procedure is a violation of this protection of the law as enshrined in Section 18 of the Constitution of Zimbabwe.

"The fines imposed by local authorities through by-laws do not have regard to this procedure at all. They are collected by municipal police and receipted by the treasury department and no reference is made to a court of law. The matter ends with receipt of the fine by the treasury department.

"Therefore, the protection of the law afforded an accused person by Section 18 of the Constitution is not respected at all," the committee said.

The legislators said that national institutions like the police, parks and wildlife authorities, among others adhered to the due process of the law while local authorities were not aligning their procedures with central Government.

"Even fines below Level Three levied by local authorities are in violation of Section 18 as long as the court does not review the papers

"The truth of the matter is that, in practice, these fines are never reviewed by any court of law. The conviction is not that of a court of law, but of a prescribed officer and no due process takes place before one is convicted and penalised," reads the report.

The committee said by-laws that provided for clamping and towing of offenders' vehicles did not provide a platform for contesting that before an impartial tribunal when their vehicles have been towed.

The parliamentarians said once the vehicle was towed there were only two options, to either pay the fine or leave the vehicle with the local authority, which would subsequently sell the vehicle by public option to defray storage costs.

"Therefore, fines imposed by local authorities, which are above Level Three are unconstitutional as long as the accused person does not make an appearance before a judicial officer.

"Even in those cases where fines are within the Level Three limits, the papers should be transmitted to a judicial officer who must review the proceedings to see if they are in conformity with substantial justice.

"Any process that allows collection of fines in a way that is not consonant with procedures laid down by law infringes the right to protection of the law enshrined in Section 18 of the Constitution. Such process is not in terms of any law, and to say the least, is unlawful," said the committee.

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