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Media Commission & foreign newspapers; inclusive government
appointments - Bill Watch 4/2012
Veritas
February 08, 2012
Both
Houses are adjourned until Tuesday 28th February 2012
Media
Commission and Foreign Newspapers
The Zimbabwe
Media Commission [ZMC] chairperson has threatened action to stop
the circulation in Zimbabwe of foreign newspapers that are not registered
under the Access to
Information and Protection of Privacy Act [AIPPA]. Part XI of
AIPPA, which deals with registration, while requiring Zimbabwean
mass media owners to register, makes no clear provision for registration
of foreign newspapers, although there is a section allowing for
a “representative office of a foreign mass media service”
to be registered. But it does not say that a foreign newspaper that
is circulated in Zimbabwe must have a registered representative
office here. So action by the ZMC to stop the importation or circulation
in Zimbabwe of foreign newspapers would require an amendment to
AIPPA.
Spokespersons
for South African newspapers that are popular in Zimbabwe have denied
that AIPPA requires them to register; no doubt they have legal advice
to that effect.
Appointment
to Key Public Offices Remains Contentious in Inclusive Government
Appointments
in the inclusive
government have always been contentious. Before it was even
sworn in there were months of argument over allocation of ministerial
posts. The disputes over appointments of the Reserve Bank Governor
and the Attorney General were taken to SADC repeatedly. There were
further rows when the President unilaterally appointed provincial
governors, ambassadors and judges instead of first agreeing the
appointments with the Prime Minister. The MDC parties in the inclusive
government have based their objections to the President’s
unilateral appointments after the inclusive government was sworn
in on the following legal provisions:
Constitution,
Schedule 8 : Paragraph 1: “For the avoidance of doubt, the
following provisions of the Interparty
Political Agreement, being Article XX thereof, shall, during
the subsistence of the Interparty Political Agreement, prevail notwithstanding
anything to the contrary in this Constitution.”
It then sets
out Article 20 of the GPA, including 20.1.3(p): “The President
... in consultation with the Prime Minister, makes key appointments
the President is required to make under and in terms of the Constitution
or any Act of Parliament”
Constitution,
section 115(1) “In … Schedule 8 … “in consultation”
means that the person required to consult before arriving at a decision
arrives at the decision after securing the agreement or consent
of the person so consulted.”
Constitution,
section 113(5) “In this Constitution, unless the context otherwise
requires, a reference to the power to appoint a person to any public
office shall be construed as including a reference to the like power
to reappoint him to that office.”
Current
Disagreement over the Post of Police Commissioner-General
The position
of both MDC parties in the inclusive government is that Mr Chihuri
ceased to be the Commissioner-General of Police at the end of January
when his term of office expired, and that his reappointment or any
new appointment would not be valid unless there was consultation
and agreement between the President and the Prime Minister. If Mr
Chihuri’s term of office expired and a reappointment took
place after the expiry date or is still to take place, it is difficult
to disagree with the stance of the MDC parties – notwithstanding
the contrary opinion strongly expressed by the Attorney-General
in a ZTV interview on 2nd February. As well as the constitutional
provisions cited above, the following provision is relevant:
Constitution,
section 93(2) states that “Subject to the provisions of an
Act of Parliament, the Police Force shall be under the command of
the Commissioner-General of Police, who shall be appointed by the
President after consultation with such person or authority as may
be prescribed by or under an Act of Parliament.”
The only way
Mr Chihuri’s term of office might possibly have been extended
outside the constitutional parameters set out above would have been
if, prior to its expiry, the issue had been dealt with in the terms
of section 6 of the Police Act, which makes provision for the President
to extend the Commissioner-General’s period of service for
up to twelve months at a time. But even this would have been open
to different opinions on whether an extension is the equivalent
of a reappointment. It is obvious however that no such extension
was done before Mr Chihuri’s term expired. The Prime Minister’s
office ought to have been officially informed and it clearly was
not; it was not made public in any way; the Attorney-General has
used constitutional arguments to justify an action which, he seemed
to imply, is still to be done; and there was no appropriate rebuttal
when the PM refused to attend the National Security Council Meeting
scheduled last Friday on the basis that as his term had expired
Mr Chihuri should not attend.
Perhaps most
importantly, apart from the legal questions, there is the point
that in the public interest all parties in the inclusive government
and also the general public should have confidence in the impartiality
of the Commissioner-General of Police. If there is no general confidence
in his impartiality, it may be in the country’s interests
that we have a new Commissioner-General appointed with the agreement
of the inclusive government, especially now that the country is
heading towards elections.
Duration
of the GPA
One report of
the Attorney-General’s 2nd February interview on the position
of the Commissioner-General suggested that the Attorney-General
had said the GPA came to an end in February 2011. The statement
must have come as a surprise to many, including President Zuma and
SADC as guarantor of the GPA. As pointed out a year ago in Bill
Watch 4/2011 there is no express statement in the GPA that it will
come to an end on any particular date. Nor can a two-year life-span
be read in by implication. When the GPA was negotiated it was certainly
expected by all sides that the Inclusive Government would last only
about two years. It was also then expected that the constitution-making
process would follow the timetable set out in Article 6 of the
GPA. Then, assuming a “yes” vote in the referendum,
a new constitution would have been enacted by Parliament
not later than mid-October 2010. There would then have been time
for the holding of elections and the formation of a new government
under a new constitution before February 2011. But the constitution-making
process is still far from complete and has not been abandoned or
disowned by the GPA parties. So the GPA has remained in force.
AU Summit
Full communiqué
not yet available Although the AU Summit ended on Monday 30th January,
the full communiqué recording its decisions and resolutions
has not yet been published. However, an AU press release dated 30th
January announced that the Heads of States adopted “25 decisions,
one resolution and two declarations” and clarified the effect
of the Summit’s failure to agree on a new AU chairperson.
No election
of AU Commission chairperson and deputy chairperson, and commissioners
Neither of the two candidates for chairperson of the Commission
– incumbent Jean Ping and Nkosazana Dlamini-Zuma of South
Africa – could obtain the two-thirds vote stipulated in the
AU constitution. After long debate the Summit therefore decided
to:
- postpone
not only the elections of the chairperson and deputy chairperson
of the Commission, but also the elections of the other eight commissioners
- to set up
an ad hoc committee as soon as possible to look into the election
matter ahead of the next AU summit scheduled for June 2012 in
Malawi, in the expectation that this committee will meet in March
- to extend
the mandate of the present Commission until the next Summit.
The ad hoc committee
will be made of Heads of State and Government of the following AU
members: Benin [new AU chair], Gabon and South Africa [the countries
of the candidates for Commission chair] and one from each of the
AU regions [Central, Eastern, Northern, Southern and Western].
Election of
members of AU Peace and Security Council Ten new Council members
were elected for a two-year term ending in 2014: Cameroon and DR
Congo [Central Region]; Djibouti and Tanzania [Eastern Region];
Egypt [Northern Region]; Angola and Lesotho [Southern Region]; Cote
d’Ivoire, Gambia and Guinea [Western Region]. Zimbabwe’s
current term of office on the council ends on 31st March 2013.
Status
of Bills as at 3rd February 2012
[no changes
since Bill
Watch 2/2012 of 29th January]
Bills passed
by Parliament awaiting Presidential assent/gazetting as Acts
- Small Enterprises
Development Corporation [SEDCO] Amendment Bill [sent to President’s
Office by Parliament on 30th September 2011]
- Deposit
Protection Corporation Bill [sent to President’s Office
by Parliament on 8th December 2011]
Bill awaiting
Second Reading in the House of Assembly
Bills gazetted
and awaiting presentation
Lapsed Bills
from previous session awaiting restoration to the Order Paper
Government
Gazette
Land acquisition
– Whiteside Farm GN 22/2012, a last-minute addition to the
Gazette dated 3rd February 2012, notifies the immediate acquisition
by Government for “resettlement for agriculture” of
Subdivision H of Whiteside, in the Goromonzi area.
Increases in
mining fees SI 11/2012, dated 27th January and effective immediately,
amends the Mining (General) Regulations to prescribe:
- new fees
payable by registered holders of mining rights for the preservation
of those rights [inspection fees, protection fees, site rent,
etc].
- a new “designated
mineral” levy.
- a new schedule
of other fees, such as fees for registration of mining locations
and for export permits, and fees for laboratory services and services
provided by the Department of Mining Engineering.
[Electronic
version of SI available from veritas@mango.zw]
The increases are substantial. [Note: In his 2012 Budget statement
in November 2011 the Minister of Finance forecast these increases.
He said the major purpose of the increases would be “to discourage
holding of mining claims for speculative purposes, thereby attracting
credible investors in the mining sector”, and also that the
revised fees would ensure “a sustainable fee structure commensurate
with services rendered by the Ministry of Mines and Mining Development,
thereby improving revenue inflows to the fiscus.”]
Government financial
statements: GN 15/2012 gazetted the Government’s Consolidated
Statements for November 2011, as required by the Public Finance
Management Act.
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