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Constitutional Commissions - Bill Watch 16/2010
Veritas
April 10, 2010

Zimbabwe Human Rights Commission

The Commission was sworn in by President Mugabe at State House on Wednesday 31st March. It consists of a chairperson plus 8 members.

The Members

Chairperson: Professor Reg Austin: Lawyer, former Professor and Dean of the Faculty of Law at the University of Zimbabwe and former head of Commonwealth Secretariat’s Constitutional and Legal Affairs Division.

Deputy Chairperson: Dr Ellen Sithole: Lecturer, Law, University of Zimbabwe’

Other Members:

Dr Kwanele Jirira: Lecturer, Institute of Development Studies, Agrarian and Labour Studies, University of Zimbabwe.

Professor Carroll Khombe: Lecturer, Animal Science, National University of Science and Technology in Bulawayo.

Joseph Kurebwa: Lecturer, Political Science, University of Zimbabwe.

Jacob Mudenda: Lawyer and businessman, member of ZANU-PF Politburo. Former Provincial Governor for Matabeleland North, former ZANU PF Matabeleland North chairman.

Elasto Mugwadi: Lawyer. Former Chief Immigration Officer in Ministry of Home Affairs.

Dr Japhet Ndebeni-Ncube: Businessman. Former MDC Mayor of Bulawayo.

Nomathemba Neseni: Social worker. Executive Director, Institute of Water and Sanitation Development.

Commission’s composition not constitutional

Under section 100R(3) of the Constitution stipulates the number of members excluding the chairperson as 8 of whom at least 4 must be women. But there were only 3 women sworn in and 5 men. Presumably this was an oversight. [Is it an indication that some of the members were not well known human rights activists?] But, it means that the Commission is not properly constituted. This defect will have to be put right as a matter of urgency, to ensure the validity of acts performed by the Commission. Presumably one of the male members will have to resign to allow for a fourth woman to be appointed.

What the constitution says about qualifications and method of appointment

All members must be chosen for their “knowledge and experience in the promotion of social justice or the protection of human rights and freedoms”. In addition the chairperson must be someone who has for at least 5 years been qualified to practise as a legal practitioner in Zimbabwe. The chairperson is appointed by the President after consultation with both the Judicial Service Commission and the Parliamentary Committee on Standing Rules and Orders. The 8 other members are appointed by the President from a list of 16 nominees submitted by the Parliamentary Committee on Standing Rules and Orders [Constitution, section 100R(1) and (3)]. [The Committee on Standing Rules and Orders submitted its nominees to the President in October 2009. On 21st December it was officially announced that the three principals had agreed on the 8 members and chairperson and that the necessary consultations would take place on the chairperson, who was not named in the statement.]

Background to the Commission

The Commission is set up under section 100R of the Constitution, which stems from Constitution Amendment No. 19. The section states the qualifications for members of the Commission and the procedure for their appointment, and the functions and powers of the Commission. It also provides for additional powers to be conferred on the Commission by Act of Parliament; as yet there is no such Act. The Constitution had contained similar provision for a Human Rights Commission since 2005, but no steps were ever taken to appoint its members or to pass the necessary supporting Act of Parliament. So the new Commission starts with a completely clean slate, unhampered by the sort of transitional problems that may complicate matters for the Zimbabwe Media Commission and the Zimbabwe Electoral Commission, and free to advise the Government on what should be included in any Bill designed to supplement the constitutional provisions [see below].

Ministerial Responsibility for Commission

Responsibility for the Commission currently lies with the Minister of Justice and Legal Affairs. This is illogical, given that the President has assigned responsibility for the Constitution, which enshrines human rights and under which the Commission is appointed, to the Minister of Constitutional and Parliamentary Affairs.

Functions and Powers

Functions [section 100R(5)]:

• to promote awareness of and respect for human rights and freedoms at all levels of society
• to promote the development of human rights and freedoms
• to monitor and assess the observance of human rights in Zimbabwe
• to recommend to Parliament effective measures to promote human rights and freedoms
• to investigate the conduct of any authority or person, where it is alleged that any of the rights in the Declaration of Rights has been violated by that authority or person
• to assist the responsible Minister to prepare any report required to be submitted to any regional or international body constituted or appointed for the purpose of receiving such reports under any human rights convention, treaty or agreement to which Zimbabwe is a party.

Powers [section 100R(6) and (7)]:

• to require any person, body, organ, agency or institution to provide the Commission annually with such information as it may need for the purpose of preparing and submitting any report required to be submitted to any regional or international body under any human rights convention, treaty or agreement
• to take over and continue any investigation that has been instituted by the Public Protector, where it determines that the dominant question in issue involves a matter pertinent to its own functions
• refer to the Public Protector for investigation any matter in respect of which it determines that the dominant question in issue involves a matter pertinent to the functions of Public Protector.

Additional powers to be conferred by Act of Parliament [section 100R(8)]:

• to conduct investigations on its own initiative or on receipt of complaints;
• to visit and inspect prisons, places of detention, refugee camps etc. to ascertain the conditions under which inmates are kept, and to make recommendations regarding those conditions to the Minister responsible for those places;
• to visit and inspect places where mentally disordered persons are detained to ascertain the conditions under which those persons are kept, and to make recommendations regarding those conditions to the Minister responsible for those places; and
• to secure or provide redress for violations of human rights and for injustice.

Funding

The Estimates for 2010 provide no funding for the Commission. Presumably provision will be made in the mid-year Supplementary Estimates.

Human Rights Commission Act Needed Urgently

An Act of Parliament is urgently needed to flesh out the very bare bones of the Constitutional provisions. Apart from conferring the additional powers envisaged by section 100R(6) and (7) of the Constitution, aspects that need to be covered: are the legal capacity of the Commission, the conditions of service of the members, the appointment and conditions of service of its staff, financial and accounting procedures, power to compel the attendance of witnesses and production of documents for the purpose of its investigations, and general housekeeping matters.

When opening Parliament on 6th October 2009 President Mugabe said a Human Rights Commission Bill would be presented to Parliament for enactment during the present session. No such Bill has been presented. The Bill is also mentioned in the Government Work Plan for 2010 due to be launched shortly by the Prime Minister. Any Bill cannot now be presented until at least mid-June, when the Senate is due to resume.

It is to be hoped that the Minister of Justice and Legal Affairs will carry out wide-ranging public consultations before finalising the Bill. Civil society organisations have already done research in this field which could assist in the process. Such a Bill should among other provisions empower the Commission to secure or provide appropriate redress for violations of human rights and for injustice, as this provision is not included in its constitutional powers.

The Bill should also aim at ensuring that the Commission will comply with the Paris Principles relating to the status of national institutions for the protection and promotion of human rights, adopted by the UN General Assembly in 1993. Compliance will enable the Commission to be accredited to take part in the proceedings of the UN Human Rights Council. [Paris Principles available on request]

A Positive Development or a Delaying Mechanism?

There are great expectations of this Commission, that it will contribute to reducing the human rights abuses Zimbabwe is experiencing by promptly investigating and securing redress for victims of human rights abuses, thereby rendering resort to international bodies unnecessary. There is, however, also the fear that getting it off the ground and its ability to work effectively could be delayed by the same party political squabbling that has dogged other inclusive government initiatives. In which case its existence as an extra domestic remedy may delay the processes of seeking regional or international redress. [International human rights bodies empowered to deal with complaints of human rights violations by member States, e.g., African Commission on Human and Peoples’ Rights, UN Human Rights Council and UN Human Rights Committee, do not entertain complaints before “domestic remedies” have been exhausted, unless such remedies would be “unreasonably prolonged”. The Zimbabwe government has in the past used the “exhaustion of domestic remedies” rule to avoid dealing with the merits of complaints against it before such bodies.]

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