BILL WATCH 51/2022
[27th October 2022]
Zimbabwe Independent Complaints Commission Act Gazetted
But is Not Yet Operative
Last Friday the Zimbabwe Independent Complaints Commission Act was published in the Gazette. It can be accessed on the Veritas website [link].
Promulgation of the Act is the latest stage of a process that began in 2016. In January that year Veritas applied to the Constitutional Court for an order compelling the Government to implement section 210 of the Constitution by enacting a law to establish an independent complaints mechanism for receiving complaints about misconduct by members of the security services. The Court granted the order in 2020, some 4½ years later, and as a result the Government produced a Bill which was passed by Parliament and is now the new Act.
Legally the Act came into operation as soon as it was published, but for practical purposes it is not yet operative because the Independent Complaints Commission cannot do anything until its members and staff have been appointed.
What Must be Done to Make the Act Operative
The following steps will have to be taken to make the Act operative:
· Parliament’s Committee on Standing Rules and Orders must invite the public to nominate candidates for appointment to the Commission (a chairperson and four other members – a lawyer, a medical practitioner, a psychologist and a person with experience in a security service)
· The Committee must hold public interviews of prospective candidates and prepare two lists of seven prospective nominees each, one list for the post of chairperson and the other for the remaining four members
· The lists must be submitted to the President, who must appoint the Commission’s members from the lists
· The commissioners must meet and appoint an Executive Secretary and other staff
· The Executive Secretary must appoint investigators to carry out investigations into complaints lodged with the Commission
· The President must make regulations in terms of section 29 of the Act, prescribing procedural matters such as the form in which complaints are to be made to the Commission.
In addition the Commission will have to receive the funds it needs to pay its staff and carry out its functions. The Office of the President and Cabinet is currently responsible for administering the Act, so the funds will have to come from that Office.
Funds have not yet been appropriated for the purposes of the Commission, so if the Government wants to get the Commission operational without waiting for approval of the 2023 Budget, then section 24 of the Public Finance Management Act [PFMA] provides a solution which could and should be adopted by the President. Section 24 of the PFMA gives effect to section 306 of the Constitution and allows the President to authorise expenditure in advance of appropriation by special warrant to meet unforeseen expenditure. Any money withdrawn under a special Presidential warrant must be included in additional estimates of expenditure laid before the National Assembly and, if approved, must be charged on the Consolidated Revenue Fund by an Additional Appropriation Act.
For next year, as for all the other Commissions, an appropriation will have to be made during this end of years budget consultations.
Elections will be held next year and already incidents of political violence are increasing. Complaints against members of the security services are likely to increase too, and they will need to be investigated by the Commission. It is therefore essential to get the Commission operative as soon as possible, so the steps we have outlined in this bulletin should be taken without delay.