BILL WATCH 39/2022
[21st August 2022]
National Security Council Bill
In 2009 the now-ruling ZANU-PF party formed a Government of National Unity with the MDC, and in the same year an Act called the Zimbabwe National Security Council Act was promulgated with the aim of bringing the security services under civilian control. The Act expired when the Government of National Unity ended in 2013 but the present Constitution makes provision in section 209 for a new National Security Council consisting of:
· the President, who is chairperson,
· the Vice-Presidents, and
· such other Ministers, security service personnel and other persons as are determined in an Act of Parliament.
The National Security Council has the following functions:
· to develop a national security policy,
· to inform and advise the President on national security matters, and
· to exercise other functions specified in an Act of Parliament.
On the 6th June 2022, just short of nine years after the Constitution came into operation, a Bill was published in the Gazette to give effect to section 209 of the Constitution. It is the National Security Council Bill, and it can be accessed on the Veritas website [link]. It was presented in the National Assembly on the 18th July and is currently awaiting its Second Reading.
Analysis of the Bill
According to the Bill’s memorandum, the purpose of the Bill is to fill in the gaps left by the Constitution – by specifying additional members and functions – and generally to bring the National Security Council into operation. The memorandum does not mention the main purpose of the original Zimbabwe National Security Council Act, namely to bring the security services under civilian control. We shall return to this point later.
The main provisions of the Bill are the following:
Membership of the Council
Under clause 3 of the Bill, the Council will consist of the following members in addition to the President and Vice-President (who are members by virtue of section 209 of the Constitution):
· the Ministers responsible for national intelligence, defence, the police, prisons and finance,
· The Chief Secretary to the President and Cabinet,
· The Commander of the Defence Forces and of the Army and Air Force,
· The Commissioners-General of Police, of Prisons and Correctional Service, and of the Intelligence Services, and
· Any additional Ministers the President may appoint to the Council in consultation with any of the Ministers referred to above.
Comment: The President will appoint the additional Ministers to the Council “in consultation with” the Ministers of intelligence, defence, police, prisons and finance, and some court cases suggest this means the President will have to get the consent of those Ministers before making appointments to the Council. Rather oddly, no such consultation will be needed to remove the additional Ministers from the Council, so they will hold office at the pleasure of the President.
Functions of the Council
Clause 4 of the Bill purports to set out how the Council is to exercise its functions, but in fact it gives the Council two new ones:
· to keep the State in a state of preparedness to meet any threat to its security, and
· to “exercise any other function which the Council or the Cabinet considers to be necessary in the interests of national security”.
Comment: There is no problem with the first of these provisions, but the second is too widely phrased: it means the Council will be able to do anything whatever that its members or the Cabinet decide upon. Section 209(1)(c) of the Constitution, on the other hand, states that the Council can exercise “any other functions that may be prescribed in an Act of Parliament”. The additional functions must therefore be prescribed “in” the Act of Parliament, which means they must be stated with some degree of precision in the Act itself. To the extent that clause 4 of the Bill does not do this, it is unconstitutional.
Meetings of the Council
Clause 5 of the Bill states that the Council must meet at times and places determined by the President, and that it must meet at least once every three months. Meetings of the Council and its committees will not be open to the public but the Council will be able to inform the public of its resolutions if it is necessary to do so in the public interest.
Comments: The clause is far too skimpy and leaves a lot unsaid. For example:
· Who is to chair Council meetings in the absence of the President?
· How will decisions be reached at meetings? The 2009 Act required decisions to be by consensus, but clause 5 of the Bill is silent about whether there must be consensus or whether decisions will be by majority vote – and, in the event of the latter, whether the President and Ministers can be outvoted by military personnel.
· Must minutes be kept of meetings? Surely there will have to be some record of Council decisions?
· Although the clause mentions that committee meetings are not open to the public, there is no indication of how the committees are to be formed and what their membership will be.
While some issues of national security should legitimately be kept secret, some should be disclosed to the public and all should be disclosed to Parliament or to a committee of Parliament. We shall come back to this later.
Reports to the Council
Clause 6 of the Bill will require heads of each security service to submit reports to the Council “in such form as may be prescribed” on security-related matters relating to their services.
Comment: The word “prescribed” when used in a statute means prescribed in regulations made under the statute. The Bill makes no provision for regulations, and in the absence of such a provision the word “prescribed” is meaningless. Who is to determine the form of reports under the clause – the President or the Council?
Clause 7 of the Bill will give the Council powers to issue general or specific directives to any security service or person in connection with matters of national security. Security services and persons to whom directives are given will have to comply with them, though they will be entitled to receive “all the State support necessary” to enable them to comply. Directives will have to contain safeguards to protect the fundamental rights of individuals – but not, apparently, companies, which also have fundamental rights.
Comment: Even with the safeguard that fundamental rights must be respected, it is a bit disturbing that the Council will be able to issue directives to private persons. There should be some indication in the Bill as to what the directives may contain: that sensitive documents must be kept securely, for example. There also should be some further limits: should the Council, for example, have power to direct a company to manufacture weapons for the Defence Forces? Surely not.
Should there not also be provision for a review of directives by a court?
In Clause 8 of the Bill, members and former members of the Council are enjoined not to disclose any information obtained by virtue of their membership. The clause also prohibits anyone from disclosing “security-related information” if they have an obligation under any other law not to disclose it.
Comment: No penalty is laid down for disclosing information in breach of the clause, so the prohibitions are rather empty. The clause is probably unnecessary anyway, in view of the Official Secrets Act.
The last clause of the Bill, clause 9, states that the President may report on the state of security when giving his annual State of the Nation address in terms of section 140(4) of the Constitution.
Comment: This clause is unnecessary. Of course the President can discuss national security in his State of the Nation addresses: he doesn’t need an Act of Parliament to allow him to do so.
Omissions from the Bill
We have already noted some omissions in the Bill, regarding the Council’s meetings. There are others:
Role of Parliament
The Bill gives Parliament no role whatever in the nation’s security or the Council’s affairs. Even though our Constitution does not contains a provision equivalent to section 198(d) of the South African constitution, which states that national security is subject to the authority of Parliament, our Constitution does say in section 119 that Parliament has power to ensure that all institutions and agencies of government at every level act constitutionally and in the national interest, and for that purpose:
“all institutions and agencies of the State and government at every level are accountable to Parliament.”
This provision applies to all governmental institutions, including the Council, and the Bill should have some mechanism by which Parliament can check up on how the Council is exercising its functions. It may be undesirable for sensitive security information to be disclosed publicly in Parliament, but a special committee of Parliament could be set up to consider security issues and receive sensitive information in closed hearings.
If the Council is to hold meetings, someone has to convene them, distribute papers, see that venues are suitably equipped and so on. The Bill does not indicate who is to do this: staff of the President’s Office, military personnel, police officers, prison warders, or who?
Keeping the Council running will entail some government expenditure, though one hopes not very much. The Bill should indicate which Ministry or Department must pay for it and where the money is to come from, because section 303(1) of the Constitution states:
“No money may be withdrawn from the Consolidated Revenue Fund except to meet expenditure authorised by this Constitution or by an Act of Parliament.”
Without suitable provision in the Bill, the expenses of the Council cannot be met from the Consolidated Revenue Fund.
The Bill is a critical Bill as it provides for issues of national security and the peace and stability of the country. The Bill also a necessary one because it gives effect to the Constitution. Which raises two questions:
Why has it taken so long – nearly nine years – to bring the Bill before Parliament? And
What has been done about national security during those nine years? The Council cannot have been operating because in the absence of legislation its only members have been those specified in section 209 of the Constitution, namely the President and his Vice-Presidents.
We mentioned at the beginning of this bulletin that the purpose of the 2009 Zimbabwe National Security Council Act was to bring the security services under civilian control. The Bill does go some way towards this by involving the President, Vice-Presidents and Ministers – most of whom are civilians – in making decisions regarding national security. The Bill does not go far enough, however, because:
· It skirts over the question of how decisions will be reached at Council meetings. Will the military and security officers be able to outvote the civilians, or will the President and his Ministers have the final say?
· Secondly, it gives Parliament no role in formulating national security policies or in overseeing how the policies are carried out.
It is to be hoped that the Bill will be passed by Parliament without undue delay, and that the defects and omissions we have noted are rectified during its passage.