13 July 2014

Zimbabwe: ZLHR Within Its Rights to Question Tollgate Fees

The Zimbabwe Lawyers for Human Rights (ZLHR) has launched an urgent application to court challenging the validity of the Toll Roads (Regional Trunk Road Network) (Amendment) Regulations, 2014 under SI 106/ 2014 (hereafter the "Toll-gate fees regulations").

The primary purpose of the tollgate fees regulations is to increase the toll fees by 100%. Under the new regime, users of light private vehicles will now pay US$2 up from US$1. Users of haulage trucks will now pay US$10, up from US$5. These toll fees were effective from July 11 2014.

ZLHR, a body of human rights lawyers, has argued that the increase is unjustified.

According to the press, they contend that the increase is arbitrary, oppressive and punitive in the context of the tough economic environment.

They argue that no consultation was done with the motoring public before raising the fees as the law requires. They cite a breach of Section 3 of the Administrative Justice Act which requires policies to be reasonable and fair.

The Administrative Justice Act is the legislation that provides a facility for challenging the conduct and decisions of administrative authorities.

Under Section 3 of the Act, an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person is expected to act lawfully, reasonably and in a fair manner.

Where the administrative authority has already acted, it is required to supply written reasons for that action either within the period specified by law or within a reasonable period after a request.

I have not read the full urgent application of the ZLHR but presumably, they have sought the reasons for these increases and they have not been supplied, but meanwhile the implementation of tollgate fees regulations was imminent, hence the approach to the court.

As I have not yet read the application, I am not sure whether the ZLHR application alludes to the constitutional issues arising from the ministry's conduct.

I wish therefore to make a few observations regarding the constitutional issues as I am currently in the process of writing a book on the reasoning behind the clauses of the constitution using the experience earned from my vantage position during the constitution-making exercise.

I recall arguing strongly for the inclusion of the right to administrative justice and submitting a research paper on administrative justice to justify it.

Section 68 (1) of the constitution provides for the right to administrative justice.

It states that every person has a right to administrative conduct that is "lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair".

Subsection (2) provides that any person whose "right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct" is entitled to be given promptly and in writing the reasons for such conduct.

The purpose of these clauses is to ensure that administrative conduct meets these standards. Subsection (1) sets the highest standards expected of any administrative conduct and subsection (2) sets out the requirement for prompt written reasons for any decision that adversely affects the rights, interests or legitimate expectations of any person. Looking at the case, clearly the action of setting tollgate fees constitutes administrative conduct.

The question therefore is on whether this conduct meets subsection (1) standards of lawfulness, reasonableness and fairness -- both in the procedure and its substance. There was some controversy whether fairness should simply be about procedure (procedural fairness) but we argued that it should also include substantive fairness -- that is, in addition to the process in arriving at a decision, the decision itself must be fair.

Therefore, ZLHR or anyone in this matter would be well within their rights to raise the constitutional argument regarding a breach of section 65, if they have not already done so. Section 65 provides for the enactment of legislation to give effect to the rights under section 65 and in particular to provide for a review of administrative conduct by judicial authorities.

This is why the Administrative Justice Act exists --although it now needs to be realigned to meet the new and higher standards set out in section 65. This is also why the ZLHR have pursued the urgent application for review of the ministry's actions because the Administrative Justice Act permits persons to approach the High Court for a review of administrative conduct. Nothing will however, stop them from raising the constitutional argument before the High Court.

In terms of section 171(1) (c.), the High Court has jurisdiction to decide on constitutional matters except matters that are the exclusive preserve of the Constitutional Court. Section 175 (2) on powers of courts in constitutional matters allows a court to grant a temporary interdict or other relief to a party pending a decision of the Constitutional Court on the constitutional validity of that law. For purposes of finality, the constitutional matter may of course be referred to the Constitutional Court so that it makes a final pronouncement on its validity.

Parliament's Role

I should also point out that Parliament has a role in this matter which it has a responsibility to use.

Section 134 on subsidiary legislation makes it clear that while Parliament has the power to delegate its powers to make subsidiary legislation, such subsidiary legislation must not infringe or limit the fundamental rights and freedoms set out in the Declaration of Rights.

Section 65 on the right to administrative justice which we have discussed above is one of those rights in the Declaration of Rights and Parliament has the power to assess and pronounce whether the Ministry's conduct and SI has breached this right.

Section 134 (f) also provides that statutory instruments must be presented before the National Assembly for approval and must be submitted to the Parliamentary Legal Committee (PLC) for examination.

The PLC is a committee of Parliament made up largely of parliamentarians with a legal background and its mandate is to examine all Bills and statutory instruments to determine their compliance with the constitution and/or the enabling primary legislation.

We do not know whether the PLC has examined the tollgate fees regulations and if so, what its recommendations were. However, if it has not yet done so, then it is important that the PLC performs its mandatory obligation set out in section 152(3)(c.) of the Constitution, that is, to examine the statutory instrument and to report to Parliament and the relevant minister on its constitutional validity.

The only way to make the Constitution work is for citizens to make use of it and take an active part in its enforcement.

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