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Roundup Bulletin No. 28 - 2011
Southern African Parliamentary Support Trust
September 13, 2011
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.
Amendments on the Zimbabwe Human Rights Commission Bill
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.
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
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.
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:
to the functions and powers set out in section 100R(6) and (7) of
the Constitution, the Commission shall have the following functions
(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,
(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
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.
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.
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
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.
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.
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
- 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
- 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.
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.
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
will resume their sittings on Tuesday 20 September 2011.
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