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This article participates on the following special index pages:
New Constitution-making process - Index of articles
Assessing
Independent Commissions in the COPAC draft Constitution of Zimbabwe
Idasa
November 02, 2012
http://www.idasa.org/our_work/zimbabwe_constitutional_reform/
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Introduction
The role of
the State is limited and defined in a Constitution.
Constitutionalism is, essentially, the demarcation and circumscription
of the authority of the State so as to protect citizens. It defines
the social values and objectives that ought to underpin the State
and the way it functions. It can also describe the relationship
between the State and the individual, as well as the rights of the
individual. Some of the limitations placed on the State are exercised
by independent institutions that play an oversight role. For this
reason, how the institutions are established, who is appointed to
them, their powers and their resources all play a critical role
in determining their effectiveness. In fact, national institutions
supporting democracy and human rights have been established in more
than 100 countries.
The role of
the courts and the manner in which the courts exercise judicial
review is also critical to a constitutional State. Together, these
are the basis for determining the effectiveness of checks on state
fiat. In this context the creation of independent institutions to
promote observance of human rights and to protect people from abuse
of government power is a significant achievement in Zimbabwe's
transition to a constitutional democracy. The COPAC draft Zimbabwe
Constitution of 18 July 2012 establishes a number of institutions
to promote democracy and human rights. These structures are critical
against the background of the absence of human rights and the need
to entrench a human rights culture and act against state repression,
corruption and anti-democratic practices.
In relation
to independence and the appointment process of national institutions,
the Paris Principles
are the universal principles that are accepted as laying out the
principles that such institutions should follow. In this regard
they state:
The composition
of the national institution and the appointment of its members,
whether by means of an election or otherwise, shall be established
in accordance with a procedure which affords all necessary guarantees
to ensure the pluralist representation of the social forces (of
civilian society) involved in the promotion and protection of human
rights.
According to
a United Nations (UN) Centre for Human Rights document on National
Human Rights Institutions, "an effective national institution
will be one which is capable of acting independently of a government,
of party politics, and of all other entities and situations which
may be in a position to affect its work". The document notes
"any institution can only ever be as independent as the individuals
of which it is composed" and "the method by which members
of national institutions are appointed can be critical in ensuring
independence". It also states that the "founding legislation
of the institution should specify all matters relating to method
of appointment, including voting and other procedures to be followed.
Criteria for appointment should set out the prerequisites (including
nationality, protection, qualifications, etc) for appointment to
a national institution".
In an Organisation
for Security and Co-operation in Europe (OSCE) paper it was noted
that:
The greatest
guarantee of the impartiality and fairness of national institutions
is the selection of an Ombudsman or human rights commissioner widely
respected across political, economic, social and cultural lines
as wise, impartial, fair and someone who seeks the broadest guarantees
of respect for human rights. The quality of the selection process
ensures the quality of the candidate chosen. Because these institutions
greatly depend on the people who head them, one of the most important
factors in the institutions' effectiveness and success is
how the people who head them are chosen.
This paper examines
the role and function of various commissions that are contained
in the 18 July 2012 draft
Constitution submitted by the Constitution Select Committee. These
include:
- The Judicial
Service Commission (Chapter 8 part 3)
- The Civil
Service Commission (Chapter 10)
- The Independent
complaints mechanism for the Security Services (Chapter 11 part
1)
- Defence
Service Commission (Chapter 11 part 2)
- Police Service
Commission (Chapter 11 part 3)
- Correctional
Service Commission (Chapter 11 part 5)
- Zimbabwe
Electoral Commission (Chapter 12 part 2)
- Zimbabwe
Human Rights Commission (Chapter 12 part 3)
- Zimbabwe
Gender Commission (Chapter 12 part 4)
- Zimbabwe
Media Commission (Chapter 12 part 5)
- National
Peace and Reconciliation Commission (Chapter 12 part 6)
- Zimbabwe
Anti-Corruption Commission (Chapter 13 part 1)
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