Constitution Watch 4-2017

CONSTITUTION WATCH 4/2017

[11th March 2017]

The New National Peace and Reconciliation Commission Bill

Introduction

Commission established by the Constitution

Section 251 of the Constitution establishes the National Peace and Reconciliation Commission for a ten-year period starting on the 22nd August 2013.  Section 252 sets out the Commission’s functions, of which the main ones are:

ensuring post-conflict justice, healing and reconciliation,

developing and implementing programmes to promote national healing, unity and cohesion and the peaceful resolution of disputes,

encouraging people to tell the truth about the past and to facilitate the making of amends and the provision of justice,

developing procedures and institutions to facilitate dialogue between political parties, communities and other groups, and

taking appropriate action on complaints it has received from the public.

Commission sworn in and allocated funds

Commissioners were sworn in on 24th February 2016.  In spite of the Commission’s constitutional mandate and powers enabling it to start its work under section 252 and 342 of the Constitution, it has done little so far and is apparently waiting for an “enabling” Act.  Its Chairperson Cyril Ndebele died last year and a new Chairperson has not been appointed.   For the 2016 financial year the Commission was allocated $200 000 but spent  $366 000.  Presumably Parliament will expect a report on work done to justify this amount.   This year 2017 the Commission has been allocated $1 900 000.

Bill for “enabling” Act gazetted

On the 18th December 2015, more than two years into the Commission’s ten-year lifespan, the government gazetted a Bill to make the Commission fully operational.  The Bill was criticised as inadequate by many sections of civil society and as unconstitutional by the Parliamentary Legal Committee [see Bill Watches 7 & 8/2016, available on the Veritas website [link and link], for analyses of the Bill’s adequacy and constitutionality].  As a result the Minister of State in Vice-President Mphoko’s office withdrew it from Parliament on the 10th May 2016.

The Minister’s officials then consulted civil society and other interest groups and prepared a fresh draft of the Bill, which was published in the Gazette on the 10th February 2017.  This new Bill [link] meets many of the criticisms that were levelled against the earlier draft, but not all of them.

In this Constitution Watch we shall assess the constitutionality of the new Bill and evaluate its contents.

Outline of the new Bill

The new Bill follows the outline of the earlier one.  After a preamble setting out sections 251 and 252 of the Constitution, which establish the Commission and give it its basic functions, the new Bill deals with the following matters:

The qualifications, terms of office and conditions of service of commissioners – who are referred to as “members” in the Bill [clauses 3 and 7 and the First Schedule to the Bill]

Decentralisation of the Commission’s offices and functions [clause 6 – a new and welcome provision that was not in the earlier Bill]

Investigations by the Commission [Part III of the Bill]

Staff and reports of the Commission [Part IV of the Bill]

The Commission’s finances and the auditing of its accounts [Part V of the Bill]

Regulations [Part VI of the Bill]

We shall not go through the Bill clause by clause, but instead shall deal with some specific issues that arise from its provisions.

Membership of Commission

Qualifications for appointment to Commission

The new Bill, like the earlier one, sets out disqualifications for appointment to the Commission which are not contained in the Constitution. It’s doubtful if these extra disqualifications are constitutional.

Termination of membership of other organisations

Paragraph 3 of the First Schedule to the Bill states that a commissioner who was a member of “any organisation” on his or her appointment must terminate that membership within a week, failing which he or she ceases to be a commissioner.  All organisations, even churches, would be covered by this provision, so commissioners who are churchgoers will have to put aside their church membership on appointment.  Service to God, it seems, will be incompatible with service to the Commission.   This provision is far too wide.

Terms of office of commissioners

The new Bill, unlike the earlier one, follows the Constitution in that commissioners are appointed for five-year terms, renewable once, and that the President cannot appoint them for shorter periods.  This remedies a serious deficiency in the earlier Bill.

Filling of vacancies on Commission

Paragraph 5 of the First Schedule to the Bill states that the President must fill vacancies that occur on the Commission, and goes on to say in a proviso that if the Commission’s membership falls below a quorum [five members] the President must fill the vacancies “as soon as practicably possible”.  This suggests that so long as there are enough commissioners to constitute a quorum vacancies need not be filled quickly.  That is not so:  section 324 of the Constitution requires all constitutional obligations to be performed without delay – and filling vacancies on the Commission is one such obligation.  Paragraph 5 of the First Schedule should be altered to make this clear.

Offices and Operations of Commission

Clause 6 of the Bill, as already mentioned, requires the Commission to open branch offices and operate throughout the country.  This is welcome but its effectiveness will depend on the Commission receiving sufficient funding.  The clause also includes a provision that obliges governmental institutions to assist the Commission when called upon to do so.  If an institution fails to provide the necessary assistance the Commission may report it to Parliament.  The threat of being the subject of such a report will probably be sufficient to induce government institutions to co-operate.  This is a useful provision.

Investigations by Commission

Formality of hearings

The new Bill, like the old, envisages the Commission conducting investigations with hearings akin to court proceedings, and does not deal with less formal ways by which the Commission might work towards justice, healing and reconciliation.  The requirement in the earlier Bill, that the Commission must give 14 days’ notice of any investigation, has been omitted, but the investigations will still be very formal, with parties being represented by lawyers and witnesses giving evidence on oath [under clause 11 everyone who appears before the Commission will have to take an oath].

Formal hearings may be appropriate when the Commission is exercising its “truth” function, i.e. getting human-rights violators to tell the truth about what they have done, but national reconciliation may be better achieved through less formal processes such as mediation and negotiation.  The Bill does not give the Commission the powers it will need to engage effectively in mediation and negotiation processes:  for example, the power to compel parties and groups to submit to mediation or arbitration.

Minister’s power to prevent public disclosure of evidence

As in the earlier Bill, a Minister will have power to issue a certificate prohibiting the disclosure of evidence in the public interest [clause 9 of the Bill], but under the new Bill anyone aggrieved by such a certificate will be able to appeal against it to the Commission and, if the Commission upholds the certificate, to the Administrative Court.  This strikes a fair balance between the interests of State security on the one hand and transparency on the other.

Protection of witnesses

Under clause 9(12) of the Bill, the Commission must guarantee the safety and protection of witnesses before, during and after its hearings.  The Bill does not say how the Commission is to honour these guarantees nor does it give the Commission any means of doing so.  The clause is therefore ineffective.

Reports of Commission

The earlier Bill would have given the responsible Minister power to demand reports from Commission.  In the new Bill this power is given to Parliament, to be exercised “through the relevant Parliamentary Portfolio Committee Chairperson”.  This is appropriate because the Commission is answerable to Parliament for the efficient performance of its functions [section 235 of the Constitution].

Clause 15(7) will oblige the Commission to publish all its reports 30 days after they are laid before Parliament.  This is a useful provision designed to keep the public informed about the Commission’s activities.

Clause 15(8) is not clear but seems to mean that the Commission must ensure that all information about its activities is made accessible to the public within 18 months after the end of the year to which the information relates.  If that is what it means the clause is a very welcome step towards ensuring transparency.  The clause should be clarified however to make its meaning absolutely clear.

Staff of Commission

Clause 13(1) of the Bill states that the Commission’s staff will be appointed by the Commission “in consultation with” the Minister and the Minister of Finance.  The phrase “in consultation with” is ambiguous.  If it means only that the Commission must seek the Ministers’ views on prospective appointees, then clause 13(1) is unobjectionable.  If on the other hand the phrase means that the Commission must get the Ministers’ agreement on the prospective appointees then the clause represents a derogation from the Commission’s independence guaranteed by section 235 of the Constitution.  The point should be clarified.  “After consultation” would be an improvement.

Funds of Commission

Unlike the equivalent provision in the earlier Bill, clause 16 of the new Bill does not require the Commission to get the Minister’s approval before accepting funds from sources other than the Government.  It will merely have to consult the Minister before accepting them – and in this context the word “consult” means no more than telling the Minister about a prospective donation, grant or bequest and paying respectful, but not obsequious, attention to any views he or she may express about it.

The effect of clause 16, therefore, is that the Commission will not be wholly dependent on the Government, or the Minister’s approval, for its funding.  To the extent that it will enhance the Commission’s independence, the clause is a welcome improvement on the earlier Bill.

Regulations

In the earlier Bill the Commission could make regulations, but they had to be approved by the Minister.  This was a serious limitation on the Commission’s independence.  In the new Bill the Minister will have no power to veto regulations.  Instead, the Commission’s regulations will have to be laid before Parliament and will take effect within 30 days unless Parliament resolves to annul them. 

Drafting of the Bill

Despite having gone through several revisions, the Bill contains errors.  For example:

Several provisions are inexplicably duplicated:  clauses 10(1) and 11(2) (which both state that witnesses questioned by the Commission are obliged to answer all questions) and paragraphs 2(1) and (4) of the First Schedule [which both deal with the renewal of commissioners’ appointment].  The duplications should be removed.

Clause 10(3) suggests that witnesses who tell lies when giving evidence to the Commission may be charged with perjury under section 183 of the Criminal Law Code.  They can’t.  Perjury can be charged only for lying in evidence before a court of law. 

One of the offences in clause 12 is far too widely phrased.  Anyone who “anticipates any finding of the Commission regarding an investigation” or who “does anything or acts in a manner calculated to influence its proceedings” will be guilty of an offence and liable to imprisonment for up to two years.  That will certainly make lawyers think twice before they agree to represent people before the Commission!  Also NGOs reporting on violence, torture, etc. may find themselves committing the offence.

Conclusion

The new Bill is not ideal, particularly in that it does not envisage the Commission achieving its objectives of healing and reconciliation through less formal means than public hearings and investigations.  This is not a fatal defect, however, because section 342(2) of the Constitution gives the Commission all the powers necessary to enable it to fulfil its all it objectives including healing and reconciliation.  

Despite the defects noted in this Bill Watch, the Bill is a great improvement on the earlier one and it must be enacted as quickly as possible so that the Commission can begin its work.

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