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Indigenisation threat, Human Rights Commission Bill key appointments - Bill Watch 35/2011
Veritas
September 09, 2011

Both Houses sat last week, the Senate on Tuesday and the House of Assembly on Tuesday and Wednesday.

Both Houses then adjourned until the Opening of the New Session on 6th September

Indigenisation: Threats to Have Business Licences Cancelled Legally Unsound

The Minister of Youth Development, Indigenisation and Empowerment told mining companies and banks that if they failed to submit acceptable indigenisation implementation plans he had the power to have their business licences cancelled. This is a legally unsound claim, because the Indigenisation and Economic Empowerment Act does NOT provide for the cancellation of business licences for failure to submit plans. Cancellation of business licences can be resorted to only when, without official approval, a business is merged or restructured, unbundled or demerged, or a controlling interest is acquired or disposed of, or an investment made in it, and the result falls short of the statutory indigenisation requirements [Indigenisation and Economic Empowerment Act, section 5].

Human Rights Commission Bill in House of Assembly

Tuesday 30th August: Surprise Start to Second Reading Debate: When MPs assembled in the House on 30th August many believed they were there for a token sitting lasting only a few minutes with no significant issues due for debate. But Minister of Justice and Legal Affairs, Hon Patrick Chinamasa, sprang a surprise – immediately after the Speaker had announced receipt of a non-adverse report from the Parliamentary Legal Committee [PLC] on the Zimbabwe Human Rights Commission Bill [see comment on this below], the Minister began his Second Reading speech explaining the Bill. Douglas Mwonzora MP, chairman of the Portfolio Committee on Justice, Legal Affairs, Constitutional and Parliamentary Affairs then presented the portfolio committee’s report on the Bill. The report identifies a number of defects in the Bill and makes recommendations for remedying them. [Electronic version of report available.] After Mr Mwonzora’s presentation the House adjourned until the following day on the motion of the Minister of Constitutional and Parliamentary Affairs, Hon Eric Matinenga, who described the bringing up of the Bill as unexpected and said an adjournment was needed to give MPs a chance to debate the Bill properly.

Wednesday 31st August: House Rejects Fast-Tracking of Bill: Before the Second Reading debate on the Bill even started on Wednesday, Deputy Prime Minister Hon Arthur Mutambara, on behalf of Minister Chinamasa who was not in the House, moved a motion that the Bill should be passed by the House that day, by fast-tracking the Bill through all its stages and by sitting late if necessary, i.e. after 7 pm. But MDC-T MPs protested vehemently, saying they needed more time to consider the Bill before continuing the debate. ZANU-PF Chief Whip Joram Gumbo agreed to the adjournment of the debate on behalf of ZANU-PF and the motion for fast-tracking was not carried. The debate was then adjourned.

Further debate postponed until new Session: Along with other unfinished business, the Bill lapsed with the end of the Third Session of Parliament. Parliamentary Standing Orders allow it to be restored to the House of Assembly’s agenda if the House passes a resolution to that effect. Debate would then resume at the point already reached. Given the urgency of the Bill, the Minister of Justice and Legal Affairs is expected to seek such a resolution early in the Fourth Session, which is expected to start business on the 20th September, two weeks after the official opening of the Fourth Session of Parliament.

The PLC’s Non-Adverse Report: The PLC prepared an adverse report on the Bill, but before the report was submitted to the House the Minister met the committee and undertook to make amendments to the provisions the PLC considered unconstitutional. The PLC then cleared the way for the start of the Second Reading debate by sending the Speaker a non-adverse report conditional on these amendments being moved at the Committee Stage. The Minister has given Parliament notice of the amendments he will propose to satisfy the PLC. [Electronic version of amendments available.]

Other Business in the House of Assembly

Question Time on 31st August

Constituency Development Funds: The Minister of Constitutional and Parliamentary Affairs told the House that 133 MPs had now submitted their returns on the use of CDF money for 2010. [Note: These returns should have been submitted to the Ministry by the end of March, but some MPs have complained of non-receipt of the relevant Ministry circular, copies of which were supposed to have been placed in members’ pigeonholes in the Members’ Lobby at Parliament.]

Civil Service Audit: The Acting Public Service Minister said that following consideration by the Cabinet and the Inter-Ministerial Committee the report on the Civil Service Audit needed further verification and when this had been done the report the report would be re-presented to Cabinet.

Indigenisation of Banking Sector: Asked about reported threats to cancel banking licences, the Deputy Minister of Youth Development, Indigenisation and Empowerment said the issue had been resolved – the parties had “re-engaged” and a threshold for the banking sector had been agreed. He did not say what the threshold is.

Privileges Committee to go into Gwaradzimba Case: On 31st August the House approved without debate Minister Matinenga’s a motion for the appointment of a Privileges Committee to go into contempt of Parliament allegations raised against SMM Administrator Mr Gwaradzimba. This was a follow-up to the Speaker’s ruling of 4th August that there was a prima facie case against Mr Gwaradzimba based on remarks attributed to him that disparaged the Portfolio Committee on Mines and Energy. [In the same ruling the Speaker said there was no prima facie case against Justice and Legal Affairs Minister Chinamasa on the Portfolio Committee’s complaint that the Minister may have lied to the Committee when giving evidence on the SMM case. Portfolio Committee chairman Chindori-Chininga has said the Committee will recall Minister Chinamasa to deal with his failure to provide it with documents he claimed were in Government’s possession.]

Amendments to Standing Orders: On 31st August the Speaker announced that no objections had been lodged by MPs to the circulated amendments to Standing Orders. The amendments would therefore be deemed to have been adopted by the House with effect from 3rd June 2011. They include new provisions for Prime Minister’s Question Time and for a Senator who has presented a Private Member’s Bill to speak to the Bill in the House of Assembly, even though not a member. [Corresponding amendments to the Senate’s Standing Orders came into operation in July, in time to permit House of Assembly member Innocent Gonese to present his Private Member’s POSA Amendment Bill in the Senate after it had been approved by the House.]

In the Senate on 30th August

The Senate sat for only 28 minutes. Debate on several Thematic Committee reports was wrapped up without further discussion. Senator Komichi did not press for a vote on his motion on violence in Harare suburbs in early 2011, but concluded the debate by saying he hoped that the concern expressed by all Senators who had taken part would pay dividends. As expected, there was no movement on the POSA Amendment Bill. The Bill therefore lapsed on 5th September, when the Third Session ended. Whether or not it will be revived and restored to the Senate Order Paper is not yet clear, as it has been referred to the GPA negotiators to be dealt with as part of the Elections Roadmap exercise.

House of Assembly Seat in Peril: Dr Tracy Mutinhiri

On 31st August the ZANU-PF Politburo expelled Marondera East MP Tracy Mutinhiri from the party. This expulsion does not mean that she automatically lost her seat in the House. But ZANU-PF can have the seat declared vacant by writing to the Speaker to inform him that she has ceased to represent its interests in Parliament [Constitution, section 41(1)(e)].

Dr Mutinhiri’s position as Deputy Minister of Labour and Social Services is a separate issue: the President can dismiss her, but only after consultation with the leaders of the other GPA political parties [Constitution, Schedule 8 – GPA, Article 20.1.6(7).] This is not a case in which consultation requires the agreement of those consulted.

Reminder: Constitution section 115 giving effect to GPA Article 20 defines “after consultation with” as meaning that the person who consults is not bound by views expressed by those consulted, although their views must be considered; and “in consultation with” as meaning that the person who consults must get the agreement of those consulted.

Appointments of New Judges in Absence of Consultation

According to the Constitution Judges are appointed after consultation with the Judicial Service Commission [see definition of “after consultation” above]. But GPA Article 20 says that key appointments in terms of the Constitution must be done “in consultation with” the Prime Minister, and this would apply to judges. So these appointments should have been made in consultation with the Prime Minister. According to the Prime Minister’s office this was not done. [The same thing happened last year, causing the Prime Minister to make a strong public protest about the President’s unilateral appointment of High Court judges.] Nevertheless, on Thursday 1st September the President swore in:

• High Court judge Yunus Omerjee as an Acting Supreme Court judge, [there is a vacancy on the Supreme Court bench following the retirement of Justice Wilson Sandura at the end of July]
• Justices Martin Makonese, Hlekani Molly Mwayera and Maria Zimba Dube as new High Court judges.

Last Member of the Human Rights Commission Sworn In

At the same time as the three new High Court judges, the President swore in the last member of the Human Rights Commission, Mrs Sheila Matindike, who brings the number of women on the Commission up to the four required by the Constitution. [Note: Five men and only three women were sworn in as Commission members on 31st March 2010, in breach of the Constitutional requirement. One of the men subsequently resigned, and now Mrs Matindike’s appointment has redressed the balance – but why has it taken over a year to rectify an inexcusable error?] Mrs Matindike was among those interviewed during the Parliamentary selection process in 2009. A sociologist and distinguished women’s rights activist, she brings a wealth of relevant experience to the Commission. She has been the National General Secretary of the Zimbabwe Young Women’s Christian Association for nearly twenty years and has served on the board of YWCA International. Earlier in her career she worked for the United Nations High Commission for Refugees.

No Consultation on Expulsion of Libyan Ambassador

Constitution section 31H(4)(a) states that one of the President’s functions is to “accredit, receive and recognise diplomatic agents” and therefore by implication to withdraw accreditation and recognition. This power is, however, limited by section 31H(5) which states that in exercising this function he must “act on the advice of the Cabinet”. The MDC-T have stated that the expulsion of the Libyan Ambassador was a unilateral act by ZANU-PF and that Cabinet was not consulted. The Ambassador’s appointment was authorised by the Gaddafi government, and his switch of allegiance to the new government, before any new authorisation had come through and been accepted, did cause a diplomatic predicament. But this did not excuse an unconstitutional failure to bring the matter to Cabinet. [Comment: Perhaps a more reasonable way out of the predicament, and a more humane way for his family, would have been to wait for new authorisation to come through for him from the new government and to see whether Cabinet were to decide on recognition of the new government. If at some stage the AU decides to recognise the new government and Zimbabwe follows suit, the hasty expulsion of the ambassador and his staff will not make for future friendly relations.]

Government Gazette and Statutory Instruments

26th August

• Public Holidays for 2012 - GN 318/2011 lists the statutory public holidays for 2012.
• Feeding Prisoners - SI 97/2011 amends the Prisons Regulations by updating the Schedule spelling out the dietary scale to be applied in feeding prisoners held in the country’s prisons. The new Schedule’s list of “general observations” explaining the dietary scale is incomplete, so the SI will presumably be republished in correct form in due course.

29th August [Electronic versions NOT available.]

• SIs 98 to 105/2011 were gazetted, all giving effect to mid-year Budget measures effective 1st September 2011. SI 98 and SIs 100 to 105 are under the Customs and Excise Act. SI 99/2011 deals with official approval of fiscalised electronic registers for purposes of VAT.

2nd September [Electronic versions NOT available.]

• SI 106/2011 sets out new fees for licensing and registration under the Radiation Protection Act.

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