Parly nullifies Biti's tax law

PARLIAMENT has nullified Finance Minister Tendai Biti's tax regulations that came into force in January this year on grounds that they are unconstitutional.

The nullification of Biti's Fiscalised Recording of Taxable Transactions (Amendment) Regulations 2011 (No 5) follows the Senate's adoption of the Parliamentary Legal Committee (PLC)'s report that said Biti's law also violated the Bill of Rights.

The PLC is a constitutional body that assesses the constitutionality of all laws and statutory instruments promulgated in the country, but its legal opinion remains non-binding unless adopted by Parliament.

This week Biti's phone repeatedly went unanswered when comment was sought on his next move following documentary evidence in possession of The Financial Gazette that his regulations had been thrown out by the Senate.

But Paul Mangwana, a member of the PLC, said once Parliament adopts the legal opinion rendered by the committee, any law affected by that verdict is automatically rendered null and void.

The Deputy Minister of Justice and Legal Affairs, Obert Gutu, who is also a past chairperson of the PLC, concurred.

"Once the adverse report of the PLC is adopted, it automatically means that the offending statutory instrument is rendered ab intio, which means void from the onset, which means the law was invalid from the onset," said Gutu.

The Fiscalised Recording of Taxable Transactions (Amendment) Regulations 2011 (No 5) require companies to have fiscalised registers that record sales at the point of sale and has some security features, which fiscal authorities say would help in raising Value Added Tax by 20 percent.

It imposes a US$25 penalty for each day a trader or service provider is in violation of the regulation.

Those who continue to be in default in terms of payments due to the Zimbabwe Revenue Authority face a year's imprisonment.

But in its findings the PLC, whose other members are Movement for Democratic Change (MDC-T) Mazowe Central Member of Parliam-ent Shepherd Mushonga, Innocent Gonese (MDC-T); ZANU-PF's Mangwana and Beatrice Nyamupinga as well as the MDC's Thandeko Mkhandla, was unanimous that the regulations were unconstitutional.

"The committee noted that this civil, penalty-creating provision imposes fines above level three. In terms of Section 271(2) (b) as read with Section 141 and 356 of the Criminal Procedure and Evidence Act (Chapter 9:07) a fine above level three can only be imposed by a court of law after fully canvassing the essential elements of the offence. This procedure is meant to afford an accused person the right to the protection of the law envisaged in Section 18 of the Constitution. This is because an accused person cannot be convicted until a court has satisfied itself that the person is indeed pleading guilty," reads part of the report.

"Therefore, Section 8 of the Statutory Instrument takes away the protection created by the Criminal Procedure and Evidence Act, and in so doing violates the right to the protection of the law.

"The committee has difficulties in understanding the rationale of the imposition of civil penalties by a government department. The committee notes that all penalties, civil or criminal, collected by government departments accrue to the consolidated revenue fund. With the criminal justice system affording persons accused of breaching the law adequate protection as envisaged in Section 18 of the Constitution of Zimbabwe, it is safer to use that system wherever possible."

The committee added that the Statutory Instrument was also in violation of the Bill of Rights that lists some of the most important rights of any nation's citizens.

Part of the condemned regulations read: "offences and penalties - 10 (1) Any person who fails to comply with Section 3 on the fixed date or within any extension of that date granted by the Commissioner General in terms of Section 5 (5) shall - be liable for a civil penalty of US$25 per point of sale, for each day the taxpayer remains in default, not exceeding a period of 181 days. (b) if the person continues to be in default after the period specified in paragraph (a) be guilty of an offence and liable on conviction to a fine not exceeding level seven or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment."

Biti is the MDC-T secretary general who during his days in opposition politics before joining the inclusive government in February 2009 preached the gospel of adhering to the rule of law and the Constitution.

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