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Parliament influences some changes to Human Rights Bill
Southern African Parliamentary Support Trust
September 23, 2011

The decision by the House of Assembly to reject fast-tracking of the Zimbabwe Human Rights Commission Bill has paid off after Justice and Legal Affairs Minister, Hon. Patrick Chinamasa, agreed to incorporate some of the recommendations by the Parliamentary Legal Committee and the Portfolio Committee on Justice, Legal, Constitutional and Parliamentary Affairs.

While the proposed amendments to the Bill do not address all the concerns raised by the two parliamentary committees and various human rights non-governmental organizations and interest groups who attended public hearings convened by the portfolio committee recently, they are a positive step forward. They clearly demonstrate that Parliament is not always a rubber-stamping institution after all.

The Parliamentary Legal Committee (PLC) is mandated to determine whether or not any proposed law or statutory instrument is in violation of the Constitution while the Portfolio Committee on Justice, Legal, Constitutional and Parliamentary Affairs provides oversight on the work of the ministries of Justice and Legal Affairs and Constitutional and Parliamentary Affairs. The PLC made objections to some provisions of the Bill and agreed not to issue an adverse report provided the Minister incorporated the suggested amendments. The portfolio committee also objected to several clauses in the Bill when its chairperson Hon. Douglas Mwonzora presented the committee report during Second Reading Stage.

The main recommendations arising from the two committees’ work were as follows:

• The scope of human rights violations should cover all issues covered by international human rights instruments to which Zimbabwe is a party.
• Ministers should not interfere with the appointment of Commission staff members. These administrative duties are a preserve of the Commission.
• Matters of discipline and removal of commissioners should be done by the Parliamentary Committee on Standing Rules and Orders which recommended appointment of these commissioners in the first place.
• The Commission should submit its reports directly to Parliament and not via the Minister of Justice.
• The Commission should be given a retrospective mandate in its investigations and not begin from 13th February 2009.
• Revisiting clause which gives the Minister of Justice power to refuse information to the Commission on the basis of such information being prejudicial to “state interests”. The committee recommended that such “state interests” should be clearly defined or the provision removed totally as it was open to abuse.
• Allowing the Commission to mobilise funding from other sources without the Minister’s approval. This guaranteed the independence and autonomy of the Commission.

From these recommendations, Minister Chinamasa has agreed to revisit the definition of human rights violation to include those violations relating to an international human rights instrument even if the law domesticating such instrument did not expressly confer jurisdiction on the Commission. The import of the previous definition was that what amounted 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 was silent that the Commission can investigate that matter. This was obviously absurd and untenable.

The other issue that Minister Chinamasa has agreed to address relates to visitors to Zimbabwe. The 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. With the proposed amendment, foreigners can now make a complaint to the Commission if their rights are violated while in Zimbabwe.

There is also a proposed amendment to clause 4 that will include substantive functions of the Commission. Before this proposed 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 most welcome that the Commission has been empowered to provide “appropriate redress” for human rights violations.

Minister Chinamasa has proposed to amend clause 6, which originally provided for the appointment of the Executive Secretary to the Commission in consultation with the Ministers responsible for Justice and of 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.

A significant climb down is on Clause 12 which empowered the Minister of Justice to bar the disclosure of certain evidence either by the Commission or by the complainant in the “public interest”. This clause gave the Minister too much power which can be open to abuse. This was 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, a right which is protected by the Constitution. The proposed amendment is for such evidence which is in the “public interest” to be received in camera.

Proposals not yet taken on board by the Minister relate to the removal of commissioners, presentation of reports, mobilizing of funds and the retrospective mandate of the Commission in its investigations. The Portfolio Committee can still push for further changes during committee stage when clauses are dealt with one by one.

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