BILL WATCH 30/2017
[4th September 2017]
Parliament is in Recess
Official Opening of the Next Session – Tuesday 12th September
National Peace and Reconciliation Commission Bill: Present Status
On 3rd August the National Assembly completed the Committee Stage of this Bill, having approved a number of amendments. The amendments had to be referred back to the Parliamentary Legal Committee [PLC] for its report on whether they are consistent with the Constitution. As the National Assembly has adjourned for a six weeks’ recess, the contents of the PLC’s report will not be known until the Speaker announces the report in the National Assembly once it resumes on 12th September. Only if the PLC gives a non-adverse report on the amendments, will the National Assembly be able to pass the Bill, as amended, and send it to the Senate.
The amendments are as follows and Veritas has prepared an annotated version of the Bill showing the amendments inserted into the Bill [link]
An Outline of the Amendments to the Bill
Clause 8 (Investigative function of the Commission) (Bill, page 7)
Clause 8(3) prohibited the Commission from investigating a case that is the subject of civil proceedings in court. The amendment, proposed by the Minister and accepted by the Opposition, extends the prohibition to a case that is the subject of criminal proceedings.
Clause 9 (Manner of conducting investigations) (Bill, page 7)
The original clause 9(4) allowed any person appearing before the Commission to be represented by a legal practitioner at his own expense. The amendment adds a new subclause empowering the Commission to recommend that a witness or potential witness before the Commission be provided with legal aid by the Legal Aid Directorate, i.e., at public expense, and obliges the Legal Aid Directorate to treat such a recommendation as if it had come from a court. This means that the Director of the Legal Aid Directorate must provide legal aid, if satisfied (a) that the person has insufficient means to obtain the services of a legal practitioner on his or her own account to be legally represented and (b) that the resources of the Legal Aid Fund will be sufficient to provide the legal aid required.
Comment: Although not a guarantee that legal aid will be provided whenever recommended, this new subclause is commendable.
Clause 11 (Appearance before the Commission) (Bill, page 9)
Two amendments were made:
1. The original clause 8(1) compelled the Commission to require any person appearing before it to give evidence under oath or affirmation”. The amendment gives the Commission the option of allowing unsworn testimony.
2. The original clause 8(2) obliged a person being questioned by the Commission to produce things and answer questions even if to do so might incriminate someone. This provision has now been deleted.
Clause 12 (Other offences) (Bill, page 10)
The original clause 12 provided for a maximum penalty of a level 7 fine [up to $400.00] or imprisonment for two years or both for eight offences likely to interfere with the work of the Commission, e.g., anticipating any finding of the Commission; acting in a manner calculated to bring improper influence to bear on the Commission’s investigations; behaving in a way that would, in relation to a court of law, constitute contempt of court; hindering the Commission, its members or its staff in the performance of their functions; wilfully providing false or misleading information to the Commission; disclosing confidential information; and, finally, threatening, victimising, assaulting or otherwise harming or prejudicing the rights or interests of another person “by reason of that other person having testified or appeared before the Commission or any of the Commission’s committees”. The amendment, proposed by Hon Gonese, alters the penalty for the last and most serious offence i.e., intimidating people who have been witnesses before the Commission. Hon Gonese pointed out that clause 9(13) of the Bill provides a higher maximum penalty for the comparable offence of threatening, victimising, discouraging or dissuading a person from testifying before the Commission, and contended that the higher penalty should also apply to victimising persons who have already testified. The amendment was approved.
Comment: The result of the amendment is that the maximum penalty for both intimidating persons wishing to testify and intimidating witnesses will be the same – a level 12 fine [up to $2 000.00] or imprisonment for up to ten years or both. This is a good amendment in the light of the comparable severity of the offences.
New clause inserted in Part IV (Administration of Commission) (Bill, page 12)
After clause 15 (Reports of Commission), there is a new clause headed Implementation of Commission’s reports. The new clause obliges the Minister, within six months of the tabling of the Commission’s annual report, to present a report to the National Assembly indicating:-
· which of the Commission’s recommendations the Government intends to implement and how, and
· which of the Commission’s recommendations the Government does not intend to implement and why.
In addition the new clause obliges the National Assembly to debate the Minister’s report on one of the fifteen days on which it sits after the presentation of the Minister’s report.
Comment: This is a commendable addition to the Bill and serves the interests of accountability. It should help to ensure that MPs are able to exercise their oversight role effectively. thereby making it less likely that the Executive will allow the Commission’s recommendations to gather dust in a “pending” tray and eventually be forgotten.
First Schedule, paragraph 9 (Remuneration of members) (Bill, page 17)
The original paragraph 9 allowed salaries and allowances of Commissioners to be fixed by the President and the Minister of Finance, respectively. This has been replaced by a much shorter new paragraph providing for Commissioners to be paid “such remuneration, if any, as Parliament from time to time fix.”
Comment: The new paragraph is not satisfactory because it does not answer the question: how will Parliament will fix the remuneration? The Constitution provides that Commissioners are entitled to “such remuneration, allowances and other benefits as may be fixed by or under an Act of Parliament”. In other words, either
· the Bill must itself fix the remuneration, allowances and other benefits [which would mean changes would have to be made by Act of Parliament, a cumbersome procedure] or
· it must enable the fixing of remuneration, allowances and other benefits by some other method, e.g., by the President or by the Minister or by resolution approved by the National Assembly. As the discussion in the House on 3rd August showed MPs wanted decisions on remuneration to be made by Parliament, the paragraph should be modified to include provision for remuneration, allowances and other benefits to be fixed by resolution of the National Assembly.
Second Schedule, paragraph 12 (Loans to members) (Bill, page 19)
The original paragraph 12 allowed the Commission to make loans to Commissioners for the construction of dwelling-houses or to purchase land for residential purposes. This was deleted and a much shorter paragraph substituted providing simply that “Commissioners shall be employed according to general conditions of service”.
Comment: The deletion of the provision allowing Commissioners to grant themselves housing loans etc. is understandable in the context of this Commission, although there is a similar provision in the Zimbabwe Gender Commission Act. The new paragraph 12, however, is not satisfactory, because it is a general statement that fails to identify the authority that will fix the general conditions of service. In addition, it is inappropriate for the paragraph to be in the Second Schedule, which is headed “Ancillary Powers of the Commission”, unless the intention is for Commissioners to set their own conditions of service. Reconsideration is necessary.
General Comments on the Amendments
Veritas published a critical commentary on the Bill in Constitution Watch 4/2017 of 11th March. A number of defects in the Bill were pointed out. The overall conclusion was that, despite its defects, the Bill was a great improvement on the earlier Bill and should be enacted as quickly as possible so that the Commission could begin its work.
Although Veritas regrets that hardly any of its suggestions for clarification and correction were included in the amendments adopted by the National Assembly, our conclusion remains the same: despite defects, the Bill should be enacted as quickly as possible. It is now even more urgently needed than ever. The slow pace at which the Bill has so far proceeded through Parliament has delayed the beginning of the Commission’s effective working life by several more months [section 251(1)of the Constitution provides for the Commission to exist for the period of ten years from the 22nd August 2013].
If the Commissioners are fully committed to national peace and reconciliation and conduct their duties in an efficient and dedicated manner, there is enough scope in the Bill and in the Constitution to enable them to make a real impact in dealing with Zimbabwe’s cycles of violence, lack of inclusivity, divisions and past wounds. If the Commissioners are half hearted, not much would be achieved even with a better enabling Act.
It is to be hoped that from now on the Government and Parliament will accord the Bill the top priority it deserves, always mindful of the fact that the Commission’s constitutional ten-year life-span will expire in August 2023. Four of those ten years have already been wasted