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Constitution: National Peace and Reconciliation Commission, Part
I - Constitution Watch 40/2013
November 25, 2013
Effect to the Constitution
National Peace and Reconciliation Commission – Part I
of the Constitution
establishes an independent commission called the National Peace
and Reconciliation Commission whose functions are, very broadly,
to bring about national reconciliation in Zimbabwe. The Commission
is intended to continue the work of the Organ for National Healing,
Reconciliation and Integration which was set up pursuant to article
7 of the Global
Political Agreement; in that sense at least the Commission can
be regarded as a continuation of the Organ under another name.
In this Constitution
Watch we shall look at how the Commission can be set up, what its
functions are, and what additional measures will be necessary to
enable it to carry out its functions effectively.
the Commission has already been established by section 251 of the
Constitution, which states:
period of ten years after the effective date [i.e. when the Constitution
came fully into force - 22nd August 2013], there is a commission
to be known as the National Peace and Reconciliation Commission
The words “there
is a commission …” mean that the Commission automatically
came into existence as soon as the Constitution became operative.
However, it exists only on paper, i.e. only in a legal sense, because
without members or employees it cannot do anything. For the Commission
to be established properly it needs members and staff.
— when it is established properly — will consist of
a chairperson and eight other members.
must have been qualified for at least seven years to practise as
a legal practitioner, and is appointed by the President after consultation
with both the Judicial Service Commission and Parliament’s
Standing Rules and Orders Committee. The President does not have
to get the agreement of those two bodies before appointing a chairperson,
but if he appoints someone contrary to a recommendation of the Judicial
Service Commission, he must inform the Standing Rules and Orders
– the appointment of a deputy would have to be authorised
by an Act of Parliament and he or she must of a different gender
from that of the chairperson [section 320(4) of the Constitution].
The other members
of the Commission are appointed by the President from a list of
at least twelve nominees submitted by the Committee on Standing
Rules and Orders. These nominees are chosen by the Committee in
a transparent process laid down by section 237 of the Constitution.
The Committee must advertise the vacancies on the Commission and
invite public nominations, then conduct public interviews of prospective
candidates for appointment. This will probably not prevent political
considerations intruding into the selection of nominees but it will
at least allow the public to monitor the process and, possibly,
hold politicians to account if they select nominees who are obviously
neutrality of commissioners
Members of the
Commission, including the chairperson, must be independent and politically
neutral; if they are members of a political party on their appointment
to the Commission they will have to relinquish that membership within
30 days after being appointed [section 236 of the Constitution].
Members of Parliament, provincial councils, local authorities, parastatals
and other State-controlled entities are not eligible for appointment
to the Commission [section 320 of the Constitution].
of office of commissioners
and other members are appointed for five-year terms which can be
renewed once, so they cannot serve on the Commission for more than
ten years — which, according to section 251 of the Constitution,
is the life-span of the Commission.
has power to employ staff, subject to the Labour Act and other such
laws [section 234 of the Constitution]. No doubt the Commission
will be able to take civil servants on secondment from the Commission’s
parent Ministry, but it cannot be compelled to do so because that
would compromise its independence. In other words, the Commission
can agree to take on seconded staff but the government cannot foist
staff upon it.
may in fact have to rely on seconded staff because its life-span
is only ten years. Potential employees may be reluctant to join
an organisation which cannot offer them long-term employment.
neutrality of staff
There is nothing
in the Constitution that requires members of the Commission’s
staff to be politically neutral, but the very nature of the Commission’s
objective, to bring about political reconciliation in Zimbabwe,
will demand at least some degree of impartiality.
Commission the Successor to the Organ?
As already mentioned,
the Commission is the successor to the Organ for National Healing,
Reconciliation and Integration in the sense that it will perform
much the same functions as the Organ. It is not, however, the Organ’s
successor in a legal sense. Members of the Organ will not automatically
become commissioners, though if they are suitably qualified and
pass the constitutional selection process they can be appointed
as commissioners. Members of the Organ’s staff, similarly,
will not automatically be employed by the Commission but there is
nothing to stop the Commission engaging them. For the time being
the Organ’s staff members form a department in the President’s
Office, so presumably they are now civil servants. If they join
the Commission as full-time staff they will have to leave the civil
service; but if, as suggested above, the Commission has difficulty
engaging its own staff it may have to accept them on secondment.
sets out the Commission’s functions at length and in very
- to ensure
post-conflict justice, healing and reconciliation;
- to develop
and implement programmes to promote national healing, unity and
cohesion in Zimbabwe and the peaceful resolution of disputes;
- to bring
about national reconciliation by encouraging people to tell the
truth about the past and facilitating the making of amends and
the provision of justice;
- to develop
procedures and institutions at a national level to facilitate
dialogue among political parties, communities, organisations and
other groups, in order to prevent conflicts and disputes arising
in the future;
- to develop
programmes to ensure that persons subjected to persecution, torture
and other forms of abuse receive rehabilitative treatment and
- to receive
and consider complaints from the public and to take such action
in regard to the complaints as it considers appropriate;
- to develop
mechanisms for early detection of areas of potential conflicts
and disputes, and to take appropriate preventive measures;
- to do anything
incidental to the prevention of conflict and the promotion of
- to conciliate
and mediate disputes among communities, organisations, groups
and individuals; and
- to recommend
legislation to ensure that assistance, including documentation,
is rendered to persons affected by conflicts, pandemics or other
An Act of Parliament
can confer additional functions on the Commission, so long as the
functions do not compromise the Commission’s independence
or effectiveness [section 321 of the Constitution].
So broad and
vague are the Commission’s functions that it will be largely
up to the commissioners to decide which of them to concentrate on
and which to put on a back-burner. Specifically, they may choose
to concentrate on the prevention of future conflicts rather than
to investigate the origins of past ones; indeed, they may have to
make such a choice because they are unlikely to be given sufficient
resources to carry out all their functions fully and effectively,
and the government may be reluctant to finance an investigation
of abuses that took place while current politicians were in power.
The choice between
investigating past abuses or instead concentrating on preventing
future conflicts is likely to be highly controversial. Most civil
society organisations favour the former; the government, as already
noted, probably favours the latter. In making the choice, commissioners
should bear in mind that the investigation of past abuses is not
an end in itself. It is important only to the extent that, by exposing
and healing past wounds, it serves to prevent similar wounds being
inflicted in the future.
the Commission Need an Act of Parliament Before it Can Function?
Many of the
commissions established under the Constitution operate under Acts
of Parliament which give them additional powers and lay down procedural
rules under which they operate. For example, the Zimbabwe Electoral
Commission operates under the Electoral
Act, the Zimbabwe Human Rights Commission under the Zimbabwe
Human Rights Commission Act, and the Zimbabwe Anti-Corruption
Commission under the Anti-Corruption Commission Act. But the fact
that many commissions have their own Acts of Parliament does not
mean they all need one. The National Peace and Reconciliation Commission
could exercise most of its functions without any additional legislation,
simply using the powers given to it by the Constitution. In other
words, the Commission could start functioning as soon as its members
have been appointed, so long as it is given adequate financial resources
to do so. We say this for the following reasons:
342 of the Constitution states that all constitutional bodies
“have all powers necessary for them to fulfil their objectives
and exercise their functions”. So the Constitution itself
gives the Commission all the necessary powers.
- To the extent
that commissioners need rules of procedure to conduct their meetings
or to regulate how the Commission is to exercise its functions,
section 321(4) of the Constitution allows them to determine their
own procedures, so long as the procedures are fair and promote
- The Commission’s
predecessor, the Organ for National Healing, Reconciliation and
Integration, existed for several years without any legislation
to back it up.
Commission can exercise all its functions without legislation depends
on the extent of those functions: in particular, it depends on whether
the Commission was intended to play a purely mediatory role in bringing
about national healing and reconciliation, or was supposed to exercise
more than mere persuasion in bringing people together. More specifically,
did the constitution-makers intend the Commission to act as a truth
and reconciliation commission on the South African model?
This and related
topics will be discussed in Part II.
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