In pursuit of its Constitutional mandate as provided for in Section 152 of the Constitution, the Parliamentary Legal Committee (hereinafter referred to as “the Committee”) on the 24th of February 2016 at 1045hrs met to consider the National Peace and Reconciliation Bill [H.B. 13, 2015]. After deliberations, it unanimously resolved that an adverse report be issued in respect of the Bill, gazetted in the month of January 2015, due to the following considerations:—
Clause 3 National Peace and Reconciliation Commission:
Clause 3 (1)
The clause states that “a member shall hold office for such period, being not more than five years”. The interpretation of that clause suggests that the President is able to remove a member from office before the 5 year tenure which contravenes section 320 (1) of the Constitution which reads that, except otherwise provided in this Constitution, every member of a Commission is appointed for a term of five years which is renewable for one additional term only”. Accordingly, there is no discretion on the part of the appointing authority to remove a member from office before the prescribed office tenure of 5 years, unless the member resigns or removed from office on the grounds provided for in section 237(2) as read with subsection (3) of that section.
Further the reappointment procedure set out in clause 3 (1) suggests that there is automatic reappointment without having to go through the procedure set in section 237 of the Constitution. This contravenes section 237 of the Constitution as read with section 340 of the Constitution which sets out the appointment procedure of members of Independent Commissions. The re-appointing powers of the appointing authority in section 340 does not suggest that the procedure laid out in section 237 will be abrogated.
Clause 3 (6),(7) and (8)
The Committee on Standing Rules and Orders and the Judicial Service Commission are being given powers to review performance of the members of the Commission and the Chairperson respectively, who wish to be re-appointed on the expiry of five years. The clauses are unconstitutional in that the two institutions are being conferred with more powers than what the Constitution provides for them in section 251. The Committee on Standing Rules and Orders cannot as a matter of principle exercise powers of performance appraisal of Commissioners, when in fact it has the mandate of interviewing and recommending suitable candidates to the President in terms of section 237. It is through this process that a Commissioner wishing to be re-appointed could be re-appointed. The constitutional mandate of the CSRO in this Commission and all other Commissions is clearly laid out in section 237 and 251(1) (a) (in relation to this Commission).
The Judicial Service Commission is in terms of section 251(1)(a) consulted by the President on the appointment of the Chairperson of the Commission, and advises the President on the removal of a member of the Commission from office in terms of section 237(3) as read with section 187 of the Constitution. Therefore, simply reviewing performance for purposes of re-appointing as envisaged in clause 3(6) to (8) is unconstitutional.