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