BILL WATCH 8-2016

BILL WATCH 8/2016

[15th February 2016]

The National Peace and Reconciliation Commission Bill (Part 2)

Introduction

In Bill Watch 7/2016, we analysed the first three parts of the National Peace and Reconciliation Commission Bill (HB 13, 2015).  We continue our analysis in this Bill Watch [The Bill is available from Veritas – please follow this link or use the addresses at the end of this bulletin].

Part IV (Administrative Matters)

Clauses 10 and 11 state that the Commission must appoint a chief executive officer and a secretary “in consultation with the Minister”, but the clauses both have a proviso that the Minister can assign persons employed in the Ministry to act as chief executive officer and secretary.

Comment:  These clauses are worrying on two counts.  If “in consultation with” means that the Minister must agree to the appointments, then the Commission does not have an independent discretion in the appointment of its chief executive officer and secretary.  Furthermore, the clauses do not require the Commission to consent before the Minister assigns civil servants to act as chief executive officer or secretary.  These provisions seriously undermine the Commission’s independence, and for that reason are unconstitutional.

Clause 12 gives the Commission power to appoint other staff “in consultation with the Minister and the Minister responsible for finance”. 

Comment: What was said in the comment above in relation to clauses 10 and 11 applies equally here.

Clause 13 states that the Commission must send the Minister an annual report and financial statements within 60 days after the end of its financial year, and that the Minister must lay them before the National Assembly.

Comment:  This is inconsistent with section 323 of the Constitution, which gives the Commission until the end of March, almost 90 days, to submit its annual report, and states that the Commission reports to “Parliament”, i.e. the Senate as well as the National Assembly. The clause would also be improved by the insertion of a provision allowing the Commission to submit its report direct to Parliament if the Minister fails to table the report timeously [this suggestion is based on a provision in the Audit Office Act – which has  been used in recent months to ensure that reports by the Auditor-General are not held up by Ministerial default.]

Part V (Financial Provisions)

This Part deals with the Commission’s funds and accounts, and states that the Commission must have its accounts audited annually by the Auditor-General.  The Part needs no comment except that clause 14 requires the Commission to get the Minister’s approval before accepting donations, grants, bequests or loans from anyone except the State.   This makes the Commission dependent on the State for funding.

Part VI (Miscellaneous)

Clause 17 gives the Commission a broad power to make regulations, but the regulations will have to be approved by the Minister.  Again, this is an undue limitation on the Commission’s constitutional independence.

Clause 18 states that the Bill, once in force, will expire ten years after the Commission is first appointed.

Comment:  This is an odd provision, partly because the commissioners were appointed in November last year and, more importantly, because section 251(1) of the Constitution states that the Commission is to last for 10 years from the Constitution’s effective date, i.e. from 22nd August 2013.  Hence the Commission will cease to exist in seven years’ time, and it is difficult to see how the Bill can continue in force for three years after that.  It would be possible for an Act of Parliament to create a new commission with the same functions, but that would require additional provisions which are not in the Bill.

First Schedule (Appointment of members and procedure of Commission)

This Schedule deals with the appointment and re-appointment of commissioners, as well as the procedure to be followed at meetings of the Commission and its committees.  The Schedule contains standard provisions that are applicable to most statutory bodies, but some of them are inappropriate to the Commission:

- Paragraph 2 sets out various disqualifications for membership of the Commission:  non-citizens are disqualified for appointment, as are insolvents, people who have been sentenced to imprisonment without the option of a fine, members of Parliament, and people who are members of two or more other statutory bodies. 

This is unconstitutional:  section 320(3) of the Constitution lists people who are disqualified for appointment to a commission [members of Parliament or provincial or local authorities and members of government-controlled entities] and there is no suggestion that an Act of Parliament can prescribe further disqualifications.  In other words, if the Committee on Standing Rules and Orders nominates a non-citizen or an insolvent for appointment to the Commission, and the President is prepared to appoint him or her, nothing can stand in the way of that person’s appointment.  Furthermore, a person who is a member of even one statutory body [which is a government-controlled entity as defined in the Constitution] is debarred from appointment by virtue of section 320(3) of the Constitution.

- Paragraph 3 states that commissioners continue to hold office for up to six months after their terms have expired, pending their re-appointment or the appointment of a successor. 

This is unconstitutional:  the Constitution prescribes a five-year term for members, as pointed out earlier, and an Act of Parliament can neither reduce nor extend that term.

Evaluation of the Bill

- The Bill appears to have been drafted without careful regard for the constitutional provisions that establish the Commission and deal with its membership, functions and procedures.  Moreover, the Bill is vague in one very important respect:  it is not clear whether

- the Commission will be confined to the formal investigations provided for in Part III of the Bill, with all its elaborate provisions for advance publicity, notice and so on,  [if the Commission is so confined, its effectiveness will be severely curtailed] or

- if it can investigate using a less elaborate, time-consuming and expensive procedure where it deems that appropriate.

A provision needs to be includes in the Bill clearly allowing the Commission to do the latter.

- The Commission’s ability to exercise its functions will be determined by other factors. 

Lack of Independence: The Commission’s constitutional independence may be compromised by Ministerial control/influence over:

- appointment of Commission staff [see above on clauses 10, 11 and 12]

- content of regulations made by the Commission’s [see above on clause 17] 

- funding from non-Government sources need approval [see above on Part V’s financial provisions]

Finance:  if the Commission does not receive adequate funding it will be unable to do much no matter what the Bill says.  The government allocated only $200 000 to the Commission for the 2016 financial year, a ridiculously small amount that will not enable the Commission to engage staff, hire premises and start doing what the Constitution mandates it to do. 

Delay: The commissioners were appointed only in November last year and have not yet been sworn in, so they have not assumed office and cannot do anything at all.  if they are not sworn in quickly so that they can enter office and get down to work in terms of section 320(5) of the Constitution, the Commission will have little time to achieve much before its 10-year lifespan expires in 2023.

The delay in appointing the Commission may be aggravated by the fact that the government has ignored the constitutional provision in nominating a chairperson who, although in every other respect an admirable choice, does not have the qualification stipulated by section 251(2) of the Constitution [“The chairperson ... must be a person who has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe”].  This qualification may not be thought necessary for this particular Commission, but the Constitution must be followed.  If the nominated chairperson is sworn in and then there is a constitutional challenge there will be further delays.  The solution may be to ask the chairperson designate to become the deputy chair and appoint an equally dedicated chairperson but who has the qualification stipulated by the Constitution.

Conclusion

Zimbabwe needs an effective, constitutionally compliant Commission, which can investigate the past thoroughly and impartially without interference, to give closure to victims of organised violence, to promote reconciliation and establish long-term peace and stability.  The Bill in its present state does not adequately provide for this and needs to be amended as it goes through Parliament.

 

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