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Parliamentary Roundup Bulletin No. 28 - 2011
Southern African Parliamentary Support Trust
September 13, 2011

Introduction

The Order Paper (Votes and Proceedings) of the 30th August 2011 for the House of Assembly shows a set of amendments being proposed by the Minister of Justice and Legal Affairs, Hon. Patrick Chinamasa on the Zimbabwe Human Rights Commission Bill [H.B. 3 – 2011]. The amendments were ostensibly proposed to address some concerns that the Parliamentary Legal Committee (PLC) raised to the Minister on the Bill. Below is an analysis of the Minister’s proposed amendments to see if they address real issues in the Bill.

Proposed Amendments on the Zimbabwe Human Rights Commission Bill

Amendment to Clause 2:

Clause 2 of the Bill is the interpretation clause of the proposed statute. There was widespread disquiet over the definition of what constitutes a human rights violation in the Bill. The Bill had a proviso to the effect that a human rights violation relating to an international human rights legal instrument would hold only if the law domesticating the legal instrument in question expressly conferred jurisdiction on the Zimbabwe Human Rights Commission (“the Commission” hereinafter). The import of the definition would be that what amounts to a human rights violation would not be the subject matter of the Commission’s work simply on account of the fact that the legal instrument concerned would be silent on the Commission. This is absurd and untenable.

The proposed amendment to this clause is to delete the proviso in its entirety. This is a positive development as the previous definition would have in essence made nonsense of all those international legal instruments that may even have been domesticated and did not make specific reference to the Commission (how could those already in existence make reference to a then non-existent commission?).

The other issue being addressed relates to visitors to Zimbabwe. The main Bill defined “visitor” in a very restrictive manner such that certain categories of persons who would be in Zimbabwe, could have their rights violated without legal redress. The Commission would equally be constrained to investigate their matters on account of the restrictive definition.

Amendment to Clause 4:

In the main Bill, this clause laid down the functions of the Commission. What that clause had simply sought to do was to reproduce the functions of the Commission as set out in Section 100R (5) of the Constitution of Zimbabwe. This was unhelpful. The purpose of the Act is to make provision for the operational modalities of the Commission. To that extent, for the Bill to simply regurgitate the constitutional provisions was both unnecessary and amounted to a „fifth wheel on the coach.

The proposal in the Notice of Amendments is to delete the substance of the current clause and to substitute it with substantive functions. It will provide as follows:

In addition to the functions and powers set out in section 100R(6) and (7) of the Constitution, the Commission shall have the following functions and powers,

(a) to conduct investigations on its own initiative or on receipt of complaints;
(b) to visit and inspect prisons, places of detention, refugee camps and related facilities in order to ascertain the condition under which inmates are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places or facilities;
(c) to visit and inspect places where mentally disordered or intellectually handicapped persons are detained under any law in order to ascertain the conditions under which those persons are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places, and
(d) to ensure and provide appropriate redress for violations of human rights and for injustice.”

These are no doubt real substantive functions. Before this amendment, it remained an open question whether the Commission would act on the basis of complaints exclusively, or whether it could act on its own initiative as well. It is also important that the Commission has been empowered to provide “appropriate redress” for human rights violation. It is suggested though that in the exercise of its power to visit places of detention, the statute must expressly state that the Commission shall do so without prior notice to the relevant institutions. Further, the Commission must be able to also provide appropriate redress in this regard, in addition to making recommendations to the appropriate Ministers.

Amendment of Clause 6:

The original clause provided for the appointment of the Executive Secretary to the Commission in consultation with the Ministers responsible for Justice and Finance. This was viewed as an improper and unnecessary intrusion into the independence of the Commission by the Executive.

It is proposed to amend this clause by simply describing the qualifications of the Executive Secretary. This therefore leaves the Commission to determine its staffing issues without external interference.

Amendment of Clause 9:

Clause 9 of the Bill deals with issues of the jurisdiction of the Commission. Under sub-clause (4) the Bill bars the Commission from investigating complaints/matters in paragraph (a) unless the aggrieved party was a citizen, resident or visitor to Zimbabwe at the relevant time.

This qualification of eligibility of issues for investigation by the Commission based on the status of the aggrieved party is being removed by the proposed amendment. This proposal not only accords with common sense, but is also consistent with principles of international law as they relate to the responsibility of states with regard to persons within their territories.

There has been no change with respect to the cut-off date for the commencement of the Commission’s work: It shall not go beyond the 13th February 2009 date as contained in the main Bill.

Amendment of Clause 10:

Clause 10 of the main Bill relates to the manner in which complaints shall be submitted to the Commission. There was an apparent inconsistency in sub-clause (1) where it referred to regulations made by the Commission and a “notice”. The proposal is to correct this anomaly by referring throughout to the regulations.

Amendment of Clause 12:

This clause relates to the manner the Commission is required to conduct its investigations. Under the current sub-clause (6), the Minister of Justice may by notice bar the disclosure of certain evidence either by the Commission or by the complainant. This was viewed as an unnecessary intrusion into the operational independence of the Commission, as well as being an attempt to emasculate the Commission and aggrieved parties’ freedom of expression. This right is protected by the Constitution. The grounds upon which such right could be deviated from by law are specified under section 20(2) of the Constitution. It appeared that the Bill sought to introduce a further ground-which is not provided for in the Constitution; viz issues of foreign/international relations. The proposal in the Notice of Amendment thus seeks to re-align the Bill with the Constitution.

Whilst the Notice of Amendments by the Minister of Justice and Legal Affairs does contain certain positive provisions it still does not go far enough in addressing all the contentious issues in the Bill, some of which were highlighted by the Portfolio Committee on Justice, Legal, Constitutional and Parliamentary Affairs in its report on the Bill tabled in the House of Assembly on 30 August 2011.

Below are some of the issues raised by the Justice Portfolio Committee which still remain outstanding and thus need further lobbying for if we are to get the best law possible;

• On Clause 5, the Committee argued that the appointment of the Deputy Chairperson of the Commission should be done by the Commissioners themselves rather than the executive, as this eroded the independence of the Commission.
• On Clause of 8, regarding the Reports of the Commission, the Committee strongly felt the requirement for the Commission to submit an annual report to the Minister would stifle the Commission?s independence. Hence the Committee recommended that this provision should be amended so that the Commission submits its annual reports directly to parliament.
• On Clause 9(4)(a), regarding the jurisdiction of the Commission to conduct investigations, especially the specified period within which complaints must be filed to the Commission (3 years), the Committee argued that that period was too restrictive. The Committee therefore recommended that the same provisions in the Criminal Procedure and Evidence Act Chapter 9:07, which provide for the prescription period of 20 years should be adopted. The three years period in the Bill is too short considering that some human rights violations such as torture, are too sensitive and the victim might require more than three years to recover from the traumatic effects by the time the victims tries to pursue recourse, he will already be barred by the operation of the law.
• Regarding the provision that the Commission shall not investigate human rights violations that occurred prior to the 13th February 2009, the Committee gathered that most of the people were of the view that the Commission should start investigating cases of human rights violations dating back to 1980 when Zimbabwe gained its independence. The Committee recommended that the proviso to clause 9(4) (a) should be reconsidered in order to give the Commission a retrospective mandate.

Electoral Amendment Bill

The Portfolio Committee on Justice, Legal, Constitutional and Parliamentary Affairs held its inaugural meeting for the 4th Session yesterday and resolved to conduct public hearings on the Electoral Amendment Bill on dates yet to be decided. SAPST will closely monitor this event and advise accordingly.

Parliamentary Sittings

Both Houses will resume their sittings on Tuesday 20 September 2011.

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