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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.

  • Lack of Budget

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].

  • Mode of Investigation

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.

  • Bad Drafting

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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