CONSTITUTION WATCH 6/2015
[4th May 2015]
“Bringing our Constitution to Life”
Aligning Laws with the Constitution: a Progress Report [Part 2]
In Part 1 of this progress report on constitutional alignment, we started to list what the Government has done so far in amending laws to implement the Constitution. We began with legislative changes needed to give effect to rights and freedoms conferred by the Declaration of Rights.
We continue the list in this Constitution Watch, setting out in each case what the Government has done to implement the necessary changes.
A. Implementation of the Declaration of Rights [Continued]
5. Freedom of Expression and Access to Information
Section 61 of the Constitution guarantees freedom of expression, including media freedom and academic freedom, while section 62 guarantees citizens and permanent residents a right of access to information held by the government.
The following legislative changes will be needed to give effect to these provisions:
The Broadcasting Services Act
This must be amended to ensure that members of the Broadcasting Authority of Zimbabwe are politically neutral or represent a reasonably wide spectrum of opinions, as required by section 61(4) of the Constitution. At present members of the Broadcasting Authority of Zimbabwe are appointed by the President after consultation with the Parliamentary Committee on Standing Rules and Orders and the responsible Minister [who is appointed by the President]. There is no provision to ensure their neutrality or the breadth of their opinions.
The boards of the Zimbabwe Broadcasting Company [the successor to the ZBC] and the Mass Media Trust are appointed in terms of the company’s articles and the trust’s trust deed respectively, but are still controlled by the State. Legislation should be enacted to require the boards to be politically neutral so as to ensure compliance with section 61(4)(b) of the Constitution which obliges State-owned media to be impartial.
The Access to Information and Protection of Privacy Act should be repealed or, at the very least, amended:
- to remove the restrictions on foreign participation in the production of local newspapers and other media. This violates freedom of expression – a right which is enjoyed by foreigners as well as Zimbabweans. And besides, these restriction stifle investment in the media.
- to remove the restrictions on the activities of journalists who are not accredited under the Act. Unaccredited journalists cannot be employed on a full-time basis by media publishers, and this unjustifiably restricts the scope of their work.
- to facilitate access to information held by the Government. The process laid down in the Act is cumbersome and slow. Applications for information from Ministries and parastatals must be made in writing, and applicants may have to wait for up to 30 days before they get the information. Also the process is reactive rather than proactive: anyone who wants information must ask for it, and there is no obligation on the Government or its parastatals to publish information before being asked. The Act, in other words, allows the Government to keep information to itself until a request is made for it, instead of obliging the Government to make public all information that the public may need or want, subject only to legitimate interests of national security [and these should not be too broad] and privacy. Government should publish information on its policies and programmes, its plans, its successes, and even its failures.
Sections 33 and 96 of the Criminal Law (Codification and Reform) Act, which make it a crime to insult the President and make defamation a crime, should be either repealed entirely or amended so as to reduce their scope. An executive President is a politician and should be open to the same criticism and satire, whether fair or unfair, as all other politicians. And defamation should be a civil wrong [a delict] rather than a crime.
The University of Zimbabwe Act and all other Acts establishing State universities should also be looked at to ensure that their provisions do not infringe academic freedom, for example, by giving the Minister power to approve or disapprove the Universities’ statutes and ordinances.
What has been done by the Government?
Nothing so far.
6. Right to Education
Section 75 of the Constitution protects the right of persons to establish private [i.e. non-government] schools. The State is restricted to registering such schools and closing those that do not meet “reasonable standards prescribed for registration”. Otherwise the State is not allowed to control them.
The Education Act should be amended to reduce the State’s now illegal power to control non-government schools.
What has been done?
7. Freedom of Profession, Trade or Occupation
Section 64 of the Constitution gives everyone the right to choose and carry on any profession, trade or occupation, though particular professions, trades and occupations can be regulated - for example, to prevent unqualified people practising as medical doctors.
The Indigenisation and Economic Empowerment Act will need to be amended to remove provisions which allow trades and occupations to be reserved for particular racial groups; this reservation probably also infringes section 56 of the Constitution, which prohibits unfair racial discrimination.
The Legal Practitioners Act, the Health Professions Act and other statutes which reserve work for particular professions need to be examined to ensure they are not unduly restrictive.
What has been done?
8. Right to privacy
Section 57 of the Constitution guarantees a right to privacy, which includes a right not to have the privacy of one's communications infringed.
The Interception of Communications Act allows government agencies to intercept letters, telephone calls, e-mails and all web-based communications. Warrants authorising interception are issued by a Minister [it is not clear which Minister] if he or she is satisfied that interception is in the interests of crime control or national security. The Act contains too few safeguards against unauthorised government "snooping" on private communications. In particular:
- there is no provision for interception warrants to be issued by judges or magistrates who might be able to exercise some independent control over their issue
- there is virtually no restriction on the use to which security agencies put information gained from interceptions;
- there is no parliamentary oversight over the activities of security agencies under the Act.
What has been done?
9. War veterans
The War Veterans Act must be extended to accord veterans their “due recognition” and the right to basic health care provided for in section 84 of the Constitution.
What has been done?
B. Implementation of Other Provisions of the Constitution
Zimbabwe’s statutes need amendment to comply not just with the Declaration of Rights but with other provisions of the Constitution as well.
The Citizenship of Zimbabwe Act must be amended to bring it into line with Chapter 3 of the Constitution, which protects the rights of citizens and limits the circumstances in which people can be deprived of their citizenship. In particular:
Citizens by birth must be protected from being deprived of their citizenship, and the grounds on which citizenship may be revoked must be adjusted.
The grounds on which citizens by registration may be deprived of their citizenship must be limited to those set out in section 39 of the Constitution.
Foundlings [children under the age of 15 of unknown parentage who are found in Zimbabwe] must be accorded their right to Zimbabwean citizenship.
The new Citizenship and Immigration Board mandated by section 41 of the Constitution must be established.
What has been done?
The Electoral Act should be replaced entirely because it has been amended so often that it is difficult to find out what its provisions actually are. Many of its provisions, to the extent that they can be ascertained, contain errors and anomalies. The new Act should be prepared by or under the supervision of the Zimbabwe Electoral Commission [ZEC] after all interested parties have been consulted
The new Act should deal with the following issues:
- The right to vote. Under section 67(3) of the Constitution, every citizen has the right to vote in all elections. The present Act denies the vote to members of the Diaspora, to prisoners, to hospital patients and even to electoral officers and members of the security services who are deployed outside their constituencies on polling days.
- Transfer of responsibility for voters’ rolls from the Registrar-General to ZEC.
- Removing ZEC’s monopoly over the provision of all voter education, which infringes freedom of expression guaranteed by section 61 of the Constitution. Citizens should be taught their civic rights and obligations and all about elections, as part of civic education which starts in schools.
- The election of the President and Vice-Presidents under section 92 of the Constitution.
- The Electoral Court. This is constituted as a separate court under the Act, though it is staffed by judges of the High Court. Under section 183 of the Constitution, judges cannot be appointed to sit in more than one court, so their appointment to both the High Court and the Electoral Court is unconstitutional. The simple remedy is to re-create the Electoral Court as a specialised division of the High Court.
What has been done?
An Electoral Amendment Bill was passed in 2014 but the Government admitted it fell short of aligning the Act with the Constitution — it dealt with none of the above issues.
[To be continued]
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