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Constitutional Commissions - Bill Watch 16/2010
April 10, 2010
Human Rights Commission
was sworn in by President Mugabe at State House on Wednesday 31st
March. It consists of a chairperson plus 8 members.
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.
Chairperson: Dr Ellen Sithole: Lecturer, Law, University
Jirira: Lecturer, Institute of Development Studies, Agrarian
and Labour Studies, University of Zimbabwe.
Carroll Khombe: Lecturer, Animal Science, National
University of Science and Technology in Bulawayo.
Kurebwa: Lecturer, Political Science, University of Zimbabwe.
Mudenda: Lawyer and businessman, member of ZANU-PF Politburo.
Former Provincial Governor for Matabeleland North, former ZANU PF
Matabeleland North chairman.
Mugwadi: Lawyer. Former Chief Immigration Officer in Ministry
of Home Affairs.
Ndebeni-Ncube: Businessman. Former MDC Mayor of Bulawayo.
Neseni: Social worker. Executive Director, Institute of
Water and Sanitation Development.
composition not constitutional
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.
says about qualifications and method of appointment
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.]
to the Commission
is set up under section 100R of the Constitution, which stems from
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].
Responsibility for Commission
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.
- 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.
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.
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.
for 2010 provide no funding for the Commission. Presumably provision
will be made in the mid-year Supplementary Estimates.
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.
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]
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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