Defence minister Sydney Sekeramayi’s recent decision to review upwards the retirement age for military generals and other serving war veterans from 60 to 65 years, is unconstitutional, Veritas, a local lawyer grouping has said.
By CHARLES LAITON
Just over a week ago, Sekeramayi gazetted Statutory Instrument 134/2014 for non-commissioned members and Statutory Instrument 135/2014 for other officers spelling out the exception to the standard retirement age for members of the army and the air force.
The upward review of the retirement age, which was done with President Robert Mugabe’s blessing, gave a new lease of life to military generals, many of whom are nearing the retirement age of 60.
But Veritas, a local organisation that analyses the work of the Parliament and the Laws of the country, said both statutory instruments were invalid because they were made by the minister of Defence, instead of the Defence Forces Commission.
“Whatever section 113 of the Defence Act may say, the Minister of Defence no longer has the power to make regulations for the conditions of service of Defence Force members,” Veritas said.
“Section 218 of the constitution makes that clear when it provides for the Defence Forces Service Commission, albeit with the approval of the minister, to make regulations to fix and regulate conditions of service of members of the Defence Forces, including their salaries, allowances and other benefits.
“In addition, before fixing those salaries, allowances and other benefits, the Commission must get the approval of the President, given on the recommendation of the Minister of Finance and Economic Development and after consultation with the Minister of Defence.”
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The two statutory instruments gazetted on September 5 this year, spell out an exception to the standard retirement age of 60 years for members of the Army and Air Force.
And, from now on the retirement age for members who are “war veterans” as defined in the War Veterans Act, would be 65 years. But Chief Law Officer Chris Mutangadura yesterday told The Standard that Veritas had missed the point, given that Sekeramayi simply exercised delegated legislation.
“The minister did not provide any conditions of service in this particular instance. He was simply exercising delegated legislation and therefore whatever he did, for as long as it was within the four corners of the enabling Act, it can never be said to be non-compliant with the constitution,” Mutangadura said.
But Veritas said: “It is true that section 113 of the Defence Act still says on the printed page that the Minister of Defence may make regulations for conditions of service, but that merely reflects the different approach under the previous constitution from 1994 onwards.”
The NGO further said, as the supreme law, the present Constitution overrode any conflicting provisions in section 113 of the Act.
“Paragraph 10 of the Sixth Schedule to the constitution, which deals with the continuation of existing laws such as the Defence Act, says that such laws must be “construed in conformity with” the constitution,” Veritas said.
