BILL WATCH 7-2016

BILL WATCH 7/2016

[15th February 2016]

The National Peace and Reconciliation Commission Bill (Part 1)

Introduction

Section 251 of the Constitution establishes a National Peace and Reconciliation Commission, which is to last for 10 years from the date on which the Constitution came into operation [i.e. the 22nd August 2013].  Section 252 gives the Commission the following functions:

- ensuring post-conflict justice, healing and reconciliation,

- developing and implementing programmes to promote national healing,

- encouraging people to tell the truth about the past,

- facilitating dialogue between parties and communities in order to prevent conflict, and

- receiving and taking action on complaints from the public.

Note: Although some parties to the constitutional negotiating process intended the Commission to administer transitional justice along the lines of the South African Truth and Reconciliation Commission, this is not stated expressly in section 252.

Section 342 of the Constitution confers on the Commission the powers it needs to carry out its functions:  it states that institutions established by the Constitution “have all powers necessary for them to fulfil their objectives and exercise their functions.”  At a pinch, therefore, the Commission can begin operating without additional legislation;  but other commissions such as the Human Rights Commission and the Anti-Corruption Commission have enabling Acts of Parliament, and it was to be expected that the Commission would get its own Act too.

Accordingly, on 18th December, the government gazetted the National Peace and Reconciliation Commission Bill (HB 13, 2015).  We shall examine the Bill in this and the next succeeding Bill Watch [the Bill is available from Veritas – please use this link or see the addresses at the end of this bulletin].

Contents of Bill

The important provisions of the Bill are as follows:

Preamble

The Bill begins with a preamble which simply sets out the provisions of sections 251, 252 and 253 of the Constitution.  It does not explain the need for such a commission in the light of Zimbabwe’s history of repression and governmental impunity;  but such an explanation, though perhaps desirable, is not necessary.

Clause 3 (Membership of Commission)

Under clause 3(1) members will serve a maximum of two terms of up to five years, as determined by the President, which means that the President may appoint them for one, two, three or four years at his discretion, and – again at his discretion – may re-appoint them for one further such term.

The clause goes on to state that members of the Commission, including the chairperson, are not eligible for re-appointment at the end of their term “unless there is evidence of satisfactory performance” [subclause (6)] and that the Judicial Service Commission, in the case of the chairperson, and the Committee on Standing Rules and Orders, in the case of other members, must review members’ performance and make recommendations to the President about renewing their appointment [subclauses (7) & (8)].

The above Clause 3 Provisions are Unconstitutional

- Section 320(1) of the Constitution states that members of all commissions must be appointed for five-year terms, renewable once.  The President cannot appoint them for shorter terms.

- Under section 237 as read with 340 of the Constitution, members must be re-appointed in the same way as they were initially appointed:  that is to say, their posts must be advertised and nominations sought from the public, public interviews of nominees must be held, and then a list of candidates must be sent to the President from which he selects the new members.  The re-appointment of members, in other words, is not just a matter of the JSC or Parliament considering their performance and making recommendations to the President.

Clause 6 (Functions of Commission)

This clause confers additional functions on the Commission, namely:

- To investigate disputes or conflicts falling within the Commission’s constitutional mandate, or

- To make “appropriate” recommendations for peace building strategies and conflict prevention, management and resolution, or

- To conduct research on disputes, conflicts and peace-building strategies.

[These functions are linked by the word “or”, which suggests the Commission may exercise only one of these functions, not all of them – but this is a drafting error]

Comment:  The second function is too restrictive, in that it allows the Commission to make only recommendations whereas section 252 of the Constitution empowers the Commission to develop procedures to prevent conflicts and “to take such action in regard to … complaints as it considers appropriate.”  The Constitution, in other words, gives the Commission a much more active role than is envisaged by the Bill.

Part III (Investigations by Commission)

This Part deals with investigations by the Commission into conflicts falling within the Commission’s constitutional mandate.

Clause 7 obliges the Commission to give at least 14 days’ notice, in the Gazette and in newspapers, before it conducts an investigation.  This will probably reduce the number of inquiries the Commission institutes.

Clause 8 sets out the way in which inquiries are to be conducted.  Generally, the clause will give the Commission the powers it needs to obtain evidence.  For example, the Commission will be able to summon witnesses and put questions to them; anyone who fails or refuses to attend or to answer questions truthfully will be guilty of a criminal offence.  The Commission will also be able to request the assistance of the police [the Bill does not say the police must provide assistance if asked, but they are probably obliged to do so by section 235 of the Constitution which obliges all institutions of the State to assist the Independent Commissions]

The clause provides safeguards against over-zealous exercise of its powers by the Commission:  alleged offenders will have to be given time to respond to allegations against them, and everyone appearing at an inquiry will be entitled to legal representation. 

Some provisions of clause 8 are questionable:

- The Commission will have to “guarantee safe and impartial space for the hearing of the matters before it.”  What that means is anyone’s guess.

- It will be an offence to “discourage” or “dissuade” a witness from testifying.  This is too wide, since it may inhibit lawyers from advising their clients properly.

- Witnesses may not refuse to answer questions on the ground that they may incriminate themselves – something that is regarded as part of due process in courts of law.

- The Minister of National Healing, Peace and Reconciliation will have power to issue a certificate prohibiting the public disclosure of evidence on the ground of public interest.  The certificate will not prevent the Commission from hearing the evidence, but the Commission will have to do so in a closed hearing.  Closed hearings, however, are not consistent with the transparency and public dialogue which the Commission is supposed to foster.  There will be no way of telling whether the commission’s reports accurately reflect evidence given.

Clause 9 states that after conducting an investigation the Commission must report to the Minister on its findings and recommendations for resolving the conflict, remedying harm done and preventing further conflicts.  The Minister will be obliged to take all necessary steps to implement the Commission’s recommendations, or else deal with them “in any manner he or she deems necessary in the circumstances”.  In other words, if the Minister does not want to implement the Commission’s recommendations, he or she can simply bin them.  Again, there will be a total lack of transparency.

Comment:  It is not clear if the Bill intends the Commission to have no powers except to carry out investigations and make recommendations under Part III.  If that is what is envisaged, then the Bill is unconstitutional because section 252(f) of the Constitution gives the Commission power to remedy abuses and section 233 gives it the objective of ensuring that injustices are remedied.  In any event, making the Minister responsible for implementing the Commission’s recommendations will make the Commission largely ineffective.

[To be continued]

 

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