CONSTITUTION WATCH 8/2014
[26th August 2014]
The Zimbabwe Gender Commission Bill
The Zimbabwe Gender Commission is one of the Independent Commissions established by Chapter 12 of the Constitution. No members have been appointed to the Commission yet, but a Bill was published on the 25th July which is intended to give the Commission enough operative capacity for appointments to be made and for the Commission to start work.
In this Constitution Watch we shall examine the Bill to see whether it is constitutional and whether it will enable the Commission to exercise the functions conferred upon it by the Constitution. First, however, a few words about the Commission itself.
Composition and Functions of the Zimbabwe Gender Commission
The Commission is established to ensure gender equality and to deal with gender discrimination. There is a difference between discrimination based on gender and discrimination based on sex. “Sex” refers to the biological and physical differences between men and women, whereas “gender” refers to the roles ascribed to them by society and culture. Thus sexual discrimination occurs when, for example, pregnant women are discriminated against, and gender discrimination when women suffer from stereotyped views of their roles in the work-place. The Commission should be regarded as having power to deal with both forms of discrimination.
Composition of Commission
At the outset it should be noted that the Commission is not a “women’s commission”: its membership must include men and its basic function is to ensure gender equality in Zimbabwe. In a traditionally patriarchal society such as ours women bear the brunt of gender discrimination, but if the Commission finds that in any particular sphere of life there is unfair discrimination against men the Commission must take action to end it.
The Commission is established as a legal entity by section 245 of the Constitution and is a corporate body by virtue of section 319. It consists of a chairperson and eight other members; men and women cannot be equally represented on a nine-member commission but section 17(1)(b)(ii) of the Constitution provides that 5 members must be women and 4 must be men.
All the members of the Commission are appointed by the President under section 245 of the Constitution; he appoints the chairperson after consultation with the Parliamentary Committee on Standing Rules and Orders, and chooses seven of the remaining members from a list of candidates submitted by that Committee after a public selection process. The final member is nominated by the National Council of Chiefs.
All members serve five-year terms, renewable once [section 320(1) of the Constitution]. Like members of the other independent commissions, they must be politically neutral and must not be members of any political party or organisation [section 236 of the Constitution].
Functions and powers
The Commission’s functions are set out in section 246 of the Constitution. It can do everything necessary to promote gender equality, including:
investigating violations of rights relating to gender;
advising public and private institutions on steps to ensure gender equality;
recommending prosecutions for criminal violations of rights relating to gender [the Commission cannot itself institute prosecutions];
securing appropriate redress for violations of rights relating to gender [the way in which the Commission secures such redress is not stated].
As to the Commission’s powers, it can employ staff under section 234 of the Constitution and section 342(2) gives it all other necessary powers to carry out its functions and achieve its objects.
Sufficiency of constitutional provisions
In the light of these detailed constitutional provisions, the Commission could become operational without the need for further legislation. That is to say, its members could be appointed under the Constitution and — provided they were given adequate funding — they could engage staff, purchase the necessary equipment and start functioning without further ado. Parliament seems to have recognised this, because in April this year — long before the Bill was published — Parliament published advertisements calling on the public to nominate candidates for appointment to the Commission. No date has yet been given for nominees to be interviewed by the Committee on Standing Rules and Orders.
Contents of the Bill
Because, as just pointed out, the Commission does not need further legislation to enable it to carry out its essential functions under the Constitution, one might have expected the Bill to confer substantially greater powers on the Commission so as to make it an essential instrument in creating gender equality in Zimbabwe. One might also have expected the Bill to try to differentiate the roles of the Commission and the Zimbabwe Human Rights Commission in upholding the rights of women. This is important because gender issues are human rights issues, and the two Commissions should have some legislative guidance as to their respective roles in dealing with such issues.
If anyone had such expectations, they will be disappointed. The Bill does not give the Commission any significant functions beyond those it can exercise under the Constitution and it does nothing to differentiate the roles of the two Commissions. On the contrary, the Bill may actually curtail the Commission’s effectiveness and limit its constitutional independence. Indeed, the Bill has been drafted with scant regard for some important provisions of the Constitution.
Establishment and nature of Commission
Although the Bill’s memorandum and long title suggest that the Bill will establish the Commission, it does not do that — indeed, it can’t because the Commission is established by the Constitution. Instead, clause 3 of the Bill declares that the Commission will be a corporate body [i.e. an entity like a company] with all the powers of such a body. This is unnecessary because the Commission is already a corporate body by virtue of section 319 of the Constitution and has all the powers needed to carry out its functions by virtue of section 342(2).
Appointment, terms of office and dismissal of commissioners
Clause 3 of the Bill sets out how commissioners are appointed — something which is already dealt with in section 245 of the Constitution — and states that their terms of office are fixed by the Minister of Women’s Affairs, Gender and Community Development. This is unconstitutional, because by virtue of section 320(1) of the Constitution commissioners serve for five-year terms which cannot be varied by a Minister. Under paragraph 3 of the First Schedule to the Bill, commissioners will remain in office for up to six months after the expiry of their terms pending the appointment of a successor. However convenient this may be, neither the Minister nor Parliament can extend the five-year term-limits fixed by the Constitution.
Paragraph 2 of the First Schedule to the Bill disqualifies non-citizens, insolvents and members of Parliament from appointment to the Commission. It is doubtful if the Bill can disqualify people because the Constitution doesn’t give Parliament the power to lay down qualifications for membership. Section 320(3) of the Constitution does disqualify members of local authorities and parastatals as well as members of Parliament from being members of the Commission. If the Bill is going to list disqualifications it should follow the Constitution.
Under paragraph 4 of the First Schedule to the Bill commissioners are permitted to resign by giving notice to the Minister, though section 341 of the Constitution requires notice to be given to the President. Much more importantly, the Bill gives the Minister power to dismiss commissioners from office for “unsuitable” conduct or for mental or physical incapacity — even though, under section 237 of the Constitution commissioners can only be removed from office by the President on precisely specified grounds and after the convening of a tribunal to inquire into their removal.
Functions of Commission
In regard to the Commission’s functions, Part III of the Bill sets out the way in which the Commission carries out investigations into “systemic barriers prejudicial to gender equality”, i.e. legal or other impediments prejudicial to the achievement of gender equality. Investigations will have to be preceded by press advertisements and so will be formal affairs; it is not clear if the Commission will be able to conduct informal investigations. In the course of an investigation the Commission will have power to summon people for questioning and to demand answers from them. After an investigation, the Commission will submit its findings to the Minister, but there is nothing to oblige the Minister to lay the findings before Parliament and neither the Minister nor the Commission is given power to take action on the findings. In other words, all the Commission will be able to do is to make a report and hope that someone else will do something about it.
The Commission’s other function under the Bill is to convene annual Gender Forums to discuss gender issues. The Bill makes elaborate provision for the convening and conduct of these forums: the Commission will establish two committees, a pre-forum committee to draw up the agenda for each forum and solicit financial support for it [which raises the question: what happens if financial support cannot be found?] and a forum committee to conduct the forum. The conclusions reached by a Gender Forum must be presented to the Commission and the Minister, but the Bill is silent as to what the Commission or the Minister are supposed to do with them [again there is no obligation on the Minister to lay them before Parliament]. Once again, it seems, the Commission must simply hope that someone else will take up the issues raised by the forum.
The Commission’s functions under the Bill, therefore, do not add significantly to its constitutional functions. In one respect, indeed, the Bill potentially limits them. Under clause 16 the Minister will be empowered to give the Commission policy directives relating to the exercise of its functions, and the Commission will be obliged to comply with them. This provision is obviously unconstitutional because section 235 of the Constitution states that the Commission, like the other independent commissions, is independent and “not subject to the direction or control of anyone”.
Staff and finances of Commission
Clause 10 of the Bill allows the Commission to appoint a Chief Executive Officer, though the Minister will be able to assign a civil servant to act in that position [it is not clear if the Minister may do so without the Commission’s consent]. Under clause 11 the Commission will have power to appoint other staff members, in consultation with the Minister and the Minister of Finance. As noted above, the Commission already has power under the Constitution to appoint staff [and the Constitution does not require consultation with any Minister]. The Minister will not, apparently, be able to assign civil servants to supplement the Commission’s staff.
The Commission will be financed by money appropriated to it by Parliament [clause 13], as well as from registration fees paid by attendees at Gender Forums and donations — in this regard it may be noted that, unlike the Zimbabwe Electoral Commission, the Gender Commission will be able to accept donations without getting the Minister’s consent.
Clause 12 of the Bill requires the Commission to submit annual reports and financial statements to the Minister and the Minister must lay them before Parliament within 2 months of the end of the financial year [the Constitution allows for 3 months].
Overall, the Bill is disappointing. It does nothing to clarify the issues which the Commission is to deal with. It does not add much to the Commission’s constitutional powers and it tries to detract from the Commission’s constitutional independence.
It would not be too much to say that the Commission which the Bill seeks to create is not an independent constitutional commission but rather a department of the Ministry of Women’s Affairs, Gender and Community Development.
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