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Constitution: National Peace and Reconciliation Commission: Part
II - Constitution Watch 41/2013
November 25, 2013
Effect to the Constitution
National Peace and Reconciliation Commission – Part II
Commission a Truth and Reconciliation Commission?
The answer to
this question must be found by interpreting one of the Commission’s
functions, set out in Part I, namely: “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
is worded vaguely, probably deliberately so. Two of the parties
to the constitutional drafting process, the MDC formations, were
in favour of establishing a truth and reconciliation commission
to investigate human rights abuses that took place after Independence,
particularly in Matabeleland. The other party to the process, ZANU-PF,
was against. The result is that the Commission can only “encourage”
people to tell the truth about past abuses; it cannot compel them
to do so. It is unclear what inducements, if any, the Commission
can offer to encourage people to come forward and tell the truth.
The South African
Truth and Reconciliation Commission was established with the stated
objective of promoting national unity and reconciliation by:
as complete a picture as possible of the causes, nature and extent
of human-rights violations committed between 1960 and the end
the granting of amnesty to people who made full disclosure of
politically-motivated violations of human rights, and
the fate or whereabouts of victims of those violations.
To enable it
achieve that objective the Commission could, through its Committee
on Amnesty, grant amnesty to persons who applied for it and made
full disclosure of all relevant facts about their involvement in
human-rights violations. Persons granted amnesty were absolved from
all civil or criminal liability for their conduct.
The South African
Commission was established by an Act of Parliament, but its establishment,
and its power to grant amnesties, were specifically authorised by
that country’s interim constitution, and by the final constitution.
There is no provision in our new Constitution which states expressly
that the National Peace and Reconciliation Commission can grant
amnesties to people who tell the truth about the past, and no such
power can be implied.
being no provision in our Constitution,
an Act of Parliament could probably give the Commission power to
grant amnesty from criminal liability to people who tell the truth
about their crimes. The President must assent to all Acts of Parliament,
so such an Act could be construed as a delegation by the President
of his constitutional power to grant amnesties. But, such an Act
could only exonerate repentant truth-tellers from criminal liability
and could not override the victims’ constitutional right of
access to the courts to obtain civil redress.
A point to remember
is that the question whether or not the Commission can grant amnesties
is largely academic because of amnesties that have already been
given by the government. A general amnesty was granted at Independence
to perpetrators of politically-motivated crimes committed before
1st March 1980, and in 1988, an amnesty was granted to perpetrators
of human-rights abuses committed during the so-called Gukurahundi
operation in Matabeleland between 1982 and the end of 1987. Other
amnesties have also been given to individual offenders. As a result,
most people who were involved in past human-rights abuses have already
been amnestied, so any further power granted to the Commission would
be unlikely to induce them to come forward and tell the truth about
To sum up, the
Commission is not a truth and reconciliation commission along the
lines of the South African model, since it has no constitutional
power to grant amnesties to people who co-operate with it and tell
the truth about their past crimes. An Act of Parliament could confer
such a power on the Commission, but the amnesties would confer immunity
from criminal prosecution only, not from civil liability. In any
event, many of the offenders have already been amnestied.
If Any, Powers Should be Conferred on the Commission by an Act of
Peace and Reconciliation Commission could exercise most of its functions
without any additional legislation, simply using the powers given
to it by the Constitution, but there are some powers that need to
be conferred on it which would enable it to carry out its constitutional
functions more effectively:
- Power to
summon witnesses to give evidence. Obviously this power will be
necessary if the Commission investigates past abuses, but even
if it doesn’t it may have to ascertain the truth behind
current disputes before trying to reconcile the parties. The Commission
could not, however, use this power to compel witnesses to answer
incriminating questions and so render themselves liable to criminal
- Power to
search for and demand the production of documents. Again, documentary
evidence may be needed to find out the causes of current disputes,
e.g. distribution of resources; it may also be necessary to establish
the appropriate treatment for people who have been subjected to
torture or physical abuse.
- Power to
demand information from State institutions and other bodies. For
example, if the Commission is to develop mechanisms for the early
detection of potential conflicts and disputes, which is one of
its constitutional functions, it may need to analyse crime statistics
obtained from the Police.
- Power to
refer disputes to compulsory mediation or arbitration. Parties
to disputes may not be willing to accept the Commission’s
mediation, and it may be in the national interest to compel them
to undergo the necessary processes to resolve the disputes.
does not give these powers to the Commission expressly or by implication,
so if the Commission is to exercise them they will have to be conferred
on it by an Act of Parliament.
of the Commission
It goes without
saying that the effectiveness of the Commission will depend in large
measure on whether it receives adequate funding.
requires Parliament to appropriate sufficient funds to all the constitutional
commissions to enable them to exercise their functions effectively
and that the commissions must be given a reasonable opportunity
to make representations to a Parliamentary committee about the funds
to be allocated to them [section 325]. The Constitution goes further
and states that separate estimates of revenue and expenditure must
be given for each of the constitutional commissions [section 305(3)].
These are welcome provisions and will go some way towards ensuring
that the Commission is not left in the position of some of the commissions
established by the previous Constitution, dependent for their revenues
on niggardly allocations dispensed by a parent Ministry.
with these constitutional provisions, the adequacy of the Commission’s
funding will in the last resort depend on how much money the Treasury
thinks it can spare - which may not be very much.
It may be noted
that there is no provision in the Constitution giving the Commission
the right to seek funding from outside government, so it may be
in the same position as the Zimbabwe Human Rights Commission, having
to seek permission from the government before accepting outside
of the Commission
life-span is 10 years, and after that it will cease to exist as
a constitutional commission. Should it be allowed simply to vanish,
or should it be continued, perhaps in another form?
The first point
to make is that it would be legally possible to extend the life
of the Commission. By stating that the Commission will exist “for
a period of ten years after the effective date”, the Constitution
does not mean that there must never again be a similar commission.
That would be absurd, tantamount to saying that Parliament is prohibited
from establishing another body to promote national healing and dialogue.
Hence, at the end of the Commission’s ten-year life-span Parliament
could pass an Act re-establishing the Commission as a statutory
body with the same powers and responsibilities.
Whether it will
be desirable to re-establish the Commission in ten years’
time is something that must be decided in the light of circumstances
at that time, but three points can be made at this stage:
- The Commission’s
functions include developing and implementing programmes to promote
national healing and unity, developing procedures to facilitate
inter-party dialogue, and developing mechanisms for detecting
areas of future conflict. If the Commission develops these programmes,
procedures and mechanisms, someone will have to run and maintain
them after the Commission has ceased to exist.
- The Commission
is obliged to submit annual reports to Parliament on its activities,
and will be expected to make recommendations about the promotion
of national healing. Again, someone should ensure that its recommendations
are implemented after the Commission’s ten-year life has
run its course.
and most obviously, even if the Commission carries out its work
conscientiously and effectively, areas of potential conflict are
likely to remain after ten years have elapsed, and there should
be a commission or some other body in existence ready to deal
For these reasons,
then, the government will almost certainly have to establish a new
commission or some sort of similar institution[s] after the Commission
has ceased to exist.
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