BILL WATCH 67/2020
[12th October 2020]
Two Major Bills Currently Before Parliament :
Constitution Amendment (No. 2) Amendment Bill and
Cyber Security & Data Protection Bill
As the Second Parliamentary Session of the Ninth Parliament of Zimbabwe draws to a close, there is a possibility that the Government may try to fast track two major Bills currently before the National Assembly. This bulletin is intended to serve as a reminder that it is not too late for advocacy with your MPs and Senators on these Bills and to express our hope that the Bills are not rushed through in haste without the further attention that they deserve.
Constitution of Zimbabwe Amendment (No. 2) Bill
Veritas’ comments on this Bill [link] were set out at length in a series of six Constitution Watch bulletins from January to March this year. They are available on the Veritas website as Constitution Watches 1 to 6/2020 [link].
These bulletins were consolidated into a single document entitled Veritas Representations to Parliament on Constitution of Zimbabwe Amendment (No. 2) Bill that was circulated to all members of Parliament and is also available on the Veritas website [link]. Many people raised objections to the Bill, including: many respected lawyers; the Law Society of Zimbabwe [they commented that most of the amendments in the Bill are “unnecessary, retrogressive and are not in the interest of transparency, good governance and respect for the rule of law”]; Young Lawyers Association of Zimbabwe; ZimRights; and many others.
To our comments in our bulletins and our Representations to Parliament we add the following quotation from the African Charter on Democracy, Elections and Governance:
- State Parties shall entrench the principle of the supremacy of the constitution in the political organization of the State.
- State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum. [Veritas underlining]
- State Parties shall protect the right to equality before the law and equal protection by the law as a fundamental precondition for a just and democratic society.”
The African Charter on Democracy, Elections and Governance [ACDEG] was signed by President Mnangagwa at the AU Summit in March 2018 – the first AU Summit he attended in his then new capacity as President of Zimbabwe. Subsequently both Houses of Parliament approved the Charter in March 2019. Why the Government has not yet followed up these events – lauded at the time as proof of a new dispensation in the Second Republic – by depositing Zimbabwe’s instrument of ratification with the AU in Addis Ababa is not clear. Whatever the reason, both Zimbabwe’s Head of State and Legislature have committed Zimbabwe to the Charter with much fanfare.
The Constitution does not stipulate the approval of a referendum for this amendment Bill to be passed – it only needs a two thirds majority in each House. [It is only when changes to the Declaration of Rights are proposed that a referendum must be held.] A referendum, however, may be called by the President on any question of national importance. The issues in Bill are of national importance.
There should at least have been more comprehensive countrywide consultation. Section 328 of the Constitution states that if the Constitution is to be amended, Parliament must enable “members of the public to express their views”. Although Parliament tried to hold public hearings – they were conducted during one week in June – they were very few and did not have wide geographical coverage and there was very little advance notice. They were not well attended as the country was subject to stringent COVID-19 restrictions. [A Bulawayo organisation applied to the High Court to stop the public hearings on the ground that it would be wrong to conduct hearings during the COVID-19 pandemic that would expose participants to infection, but the case was dismissed for lack of evidence [in spite of all WHO warnings].
Most importantly, there was inadequate preliminary publicity about the aims and contents of the Bill. Parliament’s Portfolio Committee on Justice, Legal and Parliamentary Affairs which conducted the public consultations and produced a report [link], which tends to support this criticism. Paragraph 4.2 of the report observes that it was apparent to the committee that the “that the general public was not adequately conscientised on the contents of the Bill”.
In the circumstances, the public consultations that did take place can hardly be said to have established compliance with the ACDEG stipulation that a change in a Constitution should only take place if “reposing on national consensus” or with the express terms of SECTION 328 of our own Constitution that members of the public have been enabled to express their views.
Cyber Security & Data Protection Bill
This Bill, too, should not be rushed. It deals with or should deal with, significant issues:
- freedom of Information
- freedom of expression
- access to information
- data protection
- possible inheritance issues involving ownership of data
- protection of privacy
- potential violation of privacy
- the possibility of undue State surveillance
- control of social media.
These are some of the issues at stake. They are complex and often difficult to understand, but they will affect all our lives and a Bill like this will have the potential to stifle democracy which in turn may affect Zimbabwe’s desire for more international engagement.
This law has been so many years in the making that there seems little point in rushing it now. Citizens need to be educated about it and to understand it before it goes through Parliament.
The report on the Bill produced by two Parliamentary committees after a series of public consultations report can be downloaded from the Veritas website [link]. Much of what we said above about the public hearings for the Constitution Amendment (No. 2) Bill also applies to the public hearings for this Bill [held in July during lockdown]. Most importantly, not many citizens really understood it.
Also available on the Veritas website is an open letter to the Speaker of Parliament about the Bill from a consortium of international media organisations [link] – which convincingly makes the point that the Bill falls short of international standards.