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Minister of Justice to Propose Amendments to Human Rights Commission
Bill - Bill Watch 41/2011
Veritas
October 09, 2011
Human
Rights Commission Bill
Constitutionality
of Bill and Amendments Proposed by Minister
It is likely
that the Zimbabwe
Human Rights Commission Bill will be re-introduced into the
House of Assembly soon. If it is, it will be at the stage that it
reached when the Third Session of Parliament
was closed. That is, it will proceed to its Second Reading. It had
its First Reading on 12th July and then, like all Bills at this
stage, it was immediately referred to the Parliamentary Legal Committee
[PLC]. The role of this committee is to examine Bills to ensure
they comply with the Constitution.
The PLC considered some of the Bill’s provisions were inconsistent
with the Constitution and accordingly prepared an adverse report
on it. Before the report was published, however, the Minister of
Justice and Legal Affairs, Mr Chinamasa, met the committee and it
was agreed he would propose the necessary amendments to the Bill
during the Committee Stage [this comes after the Second Reading
when the House goes through the Bill clause by clause and when amendments
can be proposed]. The PLC then sent the Speaker a non-adverse report
on the Bill, on condition that those amendments were made. [The
PLC’s draft adverse report has not been made public.]
The
Minister’s Proposed Amendments
The Minister’s
proposed amendments were printed in the House of Assembly’s
Votes and Proceedings for 31st August, the day after he delivered
his speech explaining the Bill to the House. [Electronic version
of Notice of Amendments available from veritas@mango.zw].
Although the PLC report is not public, some of the Minister’s
amendments obviously respond to concerns about unconstitutionality.
Other amendments do not address constitutional issues but seem to
react to issues raised in the report of the Portfolio Committee
on Justice, Legal Affairs, Constitutional and Parliamentary Affairs.
The two groups of amendments will be outlined separately. Also there
are still constitutional issues not addressed by the Minister’s
amendments, and these will also be listed. [Note: The Minister is
free to propose further amendments to the Bill, as are backbenchers
if they are not satisfied with the Minister’s amendments or
think that other clauses need to be changed.]
Amendments
to Rectify Unconstitutional Clauses
1. Who may complain
Clause 9(4)(a) of the Bill states that only a “citizen, resident
or visitor of Zimbabwe” at the time at the time of an alleged
human rights violation may complain to the Commission. Clause 2
defines “visitor” in terms which exclude such vulnerable
persons as victims of trafficking, illegal immigrants and refugees.
This restriction is inconsistent with the Constitution, which applies
the Declaration of Rights to all persons in Zimbabwe.
The Minister’s
amendment would remedy this by removing the limiting words “the
aggrieved person was a citizen, resident or visitor of Zimbabwe
…”; in consequence he also proposes the deletion of
clause 2’s definition of “visitor”, which will
be redundant if the amendment to clause 9 is made. As a result any
aggrieved person will be able to complain to the Commission.
2. “Public
interest” restriction on evidence to Commission Clause 12(6)
of the Bill allows the Minister to give notice to the Commission
and to a complainant prohibiting the disclosure by or to the Commission
[emphasis added] of evidence or documentation, if the Minister thinks
disclosure would be prejudicial to the defence, external relations,
internal security or economic interests of the State. This is inconsistent
with the constitutional right to freedom of expression. The Minister
proposes to replace this with a subclause which will allow him to
tell the Commission to hear such evidence in a closed hearing, and
the Commission will then be obliged to do so and to take steps to
prevent the disclosure of the evidence. An “aggrieved person”,
e.g., the complainant, would however be able to appeal to the courts.
This apparently substantial concession by the Minister may turn
out to be limited by his related proposal to insert a new clause
12(9), which will apply the ordinary law regarding “privileged”
evidence; this means that evidence could still be withheld from
the Commission “in the public interest”, but not merely
on the Minister’s say-so. Other proposed amendments to clause
9(7) are of a minor nature, consequential to the adoption of the
new subclause (6).
Amendments
Not Addressing Constitutional Issues
1. Extension
of definition of “human rights violation” The present
definition in clause 2 includes violations of treaties and conventions
to which Zimbabwe is a party and which have been incorporated into
Zimbabwean law [“domesticated”], but only if the domesticating
law expressly gives the Commission power to deal with violations.
The amendment will remove this requirement, so that the Commission
will be able to investigate violations even though the law which
incorporates the treaty or convention does not expressly give it
power to do so. But, the requirement that the treaty or convention
must be domesticated will remain. [Note: The Portfolio Committee
report said domestication is unnecessary, as long as Zimbabwe has
become party to a treaty or convention.]
2. Additional
functions for ZHRC Clause 4 presently purports to give the Commission
the same functions as it already has under the Constitution. The
Minister proposes to replace it with a new clause which will give
the Commission additional functions, all expressly permitted by
section 100R(8) of the Constitution:
- to visit
and inspect prisons and mental hospitals;
- to “ensure
and provide appropriate redress for violations of human rights
and for injustice”. [Note: Section 100R(8)(d) of the Constitution
says “secure and provide”, so “ensure”
must be a mistake. How the Commission will “provide”
redress is left unexplained.]
3. Qualifications
of Executive Secretary A new clause 6(2) will require that the Executive
Secretary must be a legal practitioner of at least seven years’
standing or have a graduate or post-graduate qualification in human-rights
law or a related discipline.
Other
Clauses of Bill Still Unconstitutional
Other clauses
of the Bill, not addressed by the Minister’s proposed amendments,
are or may be unconstitutional.
1. The Cut-Off
Date of 13th February 2009 Clause 9(4)(a) of the Bill prohibits
investigation of human rights violations that occurred before this
date. This is unconstitutional because section 100R(5)(e) of the
Constitution says that the Commission can investigate any violation
of the Declaration of Rights. Imposing a cut-off date is inconsistent
with the wide general words of the constitutional provision.
2. Stale Complaints
Clause 9(4)(a) also prohibits the Commission from investigating
complaints made more than three years after the violation occurred.
This, too, is an unconstitutional cutting-down of the general words
of the Constitution. It also ignores the fact that victims of human
rights violations are often unable or too frightened to complain
until long afterwards. Zimbabweans have lived for years in a culture
of fear, and the Commission should break this.
3. A More General
Objection It is at least arguable that much of the rest of the Bill
is unconstitutional. Section 100R(8) of the Constitution allows
Parliament to confer certain additional powers on the Commission,
but it doesn’t allow Parliament to do anything else. This
is not the case with other Commissions. For example, the Constitution
gives Parliament the power to confer additional functions on the
Zimbabwe Electoral Commission, to regulate its members’ conditions
of service, and to ensure its impartiality; and section 109(2) of
the Constitution gives Parliament similar powers in relation to
the Public Service Commission and other service commissions. The
absence of these extra enabling provisions in section 100R suggests
that, in relation to the Zimbabwe Human Rights Commission, Parliament
cannot prescribe the qualifications of Commissioners, their terms
of office, the procedure for removing them from office, their conditions
of service, how their meetings should be conducted, and so on; nor
can Parliament confer additional powers on the Commission apart
from what it is authorised to confer by section 100R(8).
Remaining
Omissions and Weaknesses of the Bill
Omissions Several
important matters are not dealt with in the Bill:
- Procedure
for Selecting Nominees for Commission Membership
There is no
provision for the procedure to be followed by the Standing Rules
and Orders Committee in arriving at its list of nominees for appointment
to the Commission, designed to give some assurance of sectoral representation,
impartiality and transparency. The Bill is completely silent on
this matter, which is regrettable because no other law regulates
how the Committee must exercise this sort of function.
- Interaction
with Parliament
The Commission
should be specifically authorised to communicate directly with Parliament,
to submit comments on all Bills, and to submit reports directly
to Parliament rather than through the Minister.
- Interaction
with International Human Rights Bodies
The Constitution
tasks the Commission with assisting the Government in the preparation
of compliance reports to the bodies monitoring compliance with international
human rights instruments. The Commission should also be empowered
to submit its own reports to those bodies.
Weaknesses
- Inadequate
Provision to Buttress Commission’s Independence
There is no
strong, direct statement that the Commission is independent and
not subject to direction or control by any authority such as the
President or the Minister; all the Bill says in clause 7 is that
no State official may interfere with, hinder or obstruct the Commission.
This is not quite the same thing. It should be noted that section
109 of the Constitution, which states that the Public Service Commission
and other service commissions are independent and not subject to
anyone’s control, does not apply to this commission.
- Inroads on
Commission’s Independence
The Bill in
fact specifically reduces the Commission’s independence in
three respects. Clause 6 states that the Minister must be consulted
before staff and consultants are appointed; clause 17 prevents the
Commission from accepting loans and donations without the Minister’s
approval; and clause 23 gives the Minister a power to veto the Commission’s
regulations. Also objectionable is clause 8, which allows the Minister
to demand reports and information from the Commission.
Without adequate
funding, resources and staff the Commission will not able to do
its job effectively. This is not something that that can be guaranteed
by anything said in a Bill or Act, but the Bill should at least
require the Commission’s budget to be kept separate from its
parent Ministry’s, and enjoin Parliament to keep the Commission
properly funded [something the Constitution fails to do].
An investigation
procedure limited to a formal inquiry is likely to be ineffective.
The Commission and its staff should have power to enter and search
premises, in order to gather evidence and to see for themselves
what is happening there. For example, if it is alleged that people
have been tortured in a police station or barracks, the Commission
and its staff should be able to inspect the premises to see if the
allegations are true.
- Inadequate
Provision for Securing Redress
The Commission
will be confined to reporting on human rights violations and making
recommendations about them; it will also be able to take proceedings
in court on behalf of victims. The Commission will not have power
to order anyone to stop a violation or to pay compensation, which
is what human rights commissions in other countries can do. Its
proposed power to “provide appropriate redress” is likely
to hampered by lack of funds. Its power to take legal action on
behalf of victims is unlikely to be of much use to them: court procedures
are complex, time-consuming and expensive, so any redress won through
the courts may be long delayed and will be expensive for the Commission.
- No Power
to Stop Violations
This is perhaps
the Bill’s most significant weakness. The lack of any provision
for the Commission to enforce its recommendations means that it
cannot halt ongoing violations and may be seen as lacking real “clout”.
If its recommendations to a Minister, for instance, are ignored,
the Commission’s authority would be immediately undermined.
The Bill is
marred by several instances of sloppy drafting, which could spark
unnecessary disputes if not corrected. Is it really intended, for
example, that a complainant cannot assist the Commission in its
investigations [clause 7(4)] or that Commission members have a free
hand to decide on salaries, allowances, pension benefits [Second
Schedule, paragraph 9]?
Given the country’s
history, the omissions and weaknesses in the Bill bode ill for the
future of human rights in Zimbabwe, unless MPs can find the determination
and resolution to see that it is improved during its passage through
Parliament.
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