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Position
paper on the Zimbabwe Human Rights Commission Bill HB 2, 2011
Zimbabwe Lawyers for Human Rights (ZLHR)
July 23, 2011
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Introduction
Zimbabwe Lawyers
for Human Rights (ZLHR) notes that the Zimbabwe Human Rights Commission
(ZHRC) can only be regarded as independent, effective and accountable
if it has a legal and operational framework and mandate that fully
complies with the United Nations (UN) General Assembly Resolution
48/131 (December 1993) on National Human Rights Institutions which
incorporates the Principles relating to the Status of National Institutions
(more commonly known as "the Paris Principles").
It must be borne
in mind that the current foundation of the ZHRC - as set out in
the Constitution
of Zimbabwe through insertion of a framework in terms of Constitution
of Zimbabwe (Amendment No.19) Act - is weak and problematic
and does not, in and of itself, facilitate the creation of an independent
institution. Enabling legislation can go some way towards strengthening
the independence and effectiveness of the ZHRC, but the foundational
issues relating to appointment of the Commissioners, their mandate
and independence, will remain unless further amendments are made
to the constitutional framework of this body. This is a point to
consider in the ongoing constitution-making exercise.
ZLHR notes that
this is the first time in Zimbabwe's independent history that
intention has been translated into proposed legislation to establish
a framework for considering human rights violations. This is a milestone,
and is to be commended. However, although the absence of an enabling
law has hindered the operations of the ZHRC since the appointment
of Commissioners in December 2009, ZLHR notes that a ZHRC Act that
does not comply with the Paris Principles is as good as not having
a law at all.
In order to
provide guidance to government on setting up credible independent
human rights institutions, the United Nations (UN) Office of the
High Commissioner for Human Rights has developed guidelines specifically
setting out what elements or conditions are necessary for the effective
functioning of domestic human rights commissions and institutions.
Some of the
elements include: independence; defined jurisdiction and adequate
powers; accessibility; co-operation; operational efficiency (including
sufficient resources); and accountability. The Paris Principles
and the elements highlighted in the UN Guidelines will be used to
measure the potential impact of the Bill in operationalising the
ZHRC and whether it will comply with international norms and standards
for it to be regarded as independent. It is also important to note
that a human rights commission which does not meet the requirements
as set out in the Paris Principles will not be properly recognised
in regional and international fora such as the African Union and
the United Nations. This requires, therefore, that serious attention
be paid to ensuring compliance with the Paris Principles so that
the ZHRC can participate in and benefit fully from interaction with
its peers in the region and globally.
One key issue
which has not been addressed at all in the current Bill is the role
of the ZHRC in elections. In light of the current political processes
and developments and the importance of providing mechanisms for
effective electoral dispute resolution, conflict prevention, management
and resolution, it is vital that this area of debate and the roles
and responsibilities of the ZHRC in such process is addressed within
the legislation. This will allow the ZHRC to contribute in a positive
and effective manner towards the holding of free, fair and genuine
elections in which the will of the people is respected.
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