Government sincerity questioned
A LEGAL and legislative watchdog this week raised questions about the sincerity of government in setting up a truly independent National Peace and Reconciliation Commission (NPRC) after it introduced a Bill in Parliament that is replete with clauses that severely dilutes the powers of the commission.
In a two-part commentary on the Bill that seeks to bring the NPRC into life, legal watchdog Veritas said some of the clauses contained in the Bill did not just water down the powers of the commission, but would also effectively incapacitate it, further highlighting that several of these clauses are patently unconstitutional.
The watchdog pointed out that unless thorough amendments are made to the Bill, there could be further delays to the setting up of the commission, which is already running more than 30 months behind schedule.
Although the NPRC was supposed to exist for a ten-year period after being set up in August 2013, it is yet to be established, a development that appears to give credence to claims by some human rights groups that President Robert Mugabe’s government is not keen on implementing a truly independent peace and reconciliation process.
Part of the NPRC’s mandate includes investigating cases of organised violent crimes, most of which cases are largely blamed on some members of the ruling ZANU-PF party.
Veritas pointed out that the Bill before Parliament gives too much unilateral powers to the minister under which the NPRC falls — which Minister is currently Vice President Phelekezela Mphoko (pictured) — thereby taking away the independence of the commission.
“Zimbabwe needs an effective, constitutionally-compliant commission which can investigate the past thoroughly and impartially without interference, to give closure to victims of organised violence, to promote reconciliation and establish long term peace and stability,” Veritas said.
“The Bill in its present state does not adequately provide for this and needs to be amended as it goes through Parliament.”
The watchdog highlighted some clauses in the Bill currently before Parliament which it says either severely limits the powers of the commission and/or are ultra vires the supreme law of the land.
These clauses include one that gives the Minister powers to have a say on who becomes a member of the NPRC; another that says the commissions should report its findings to the Minister who will in turn present these findings before the House of Assembly; one that requires the commission to get ministerial approval before accepting funding or assistance from sources other than government; the clause that gives the minister powers to reduce or extend the term of office of commissioners; the clause that gives the Minister powers to issue a certificate prohibiting the public disclosure of evidence on grounds of public interest, among several other clauses that effectively interfere with the commissions’ powers as provided in the Constitution.
“The second function is too restrictive, in that it allows the commission to make only recommendations (to the Minister) whereas Section 252 of the Constitution empowers the commission to develop procedures to prevent conflicts and ‘to take such action in regard to … complaints as it considers appropriate.’ The Constitution, in other words, gives the commission a much more active role than is envisaged by the Bill,” Veritas pointed out.
“It is not clear if the Bill intends the commission to have no powers except to carry out investigations and make recommendations (to the Minister) under Part III. If that is what is envisaged, then the Bill is unconstitutional because Section 252(f) of the Constitution gives the commission power to remedy abuses and Section 233 gives it the objective of ensuring that injustices are remedied. In any event, making the Minister responsible for implementing the commission’s recommendations will make the commission largely ineffective.”
Veritas pointed out that the Bill appears to have been drafted without careful regard for the constitutional provisions that establish the commission and was also vague in many respects.
“It is not clear whether the commission will be confined to the formal investigations provided for in Part III of the Bill, with all its elaborate provisions for advance publicity, notice and so on, (if the commission is so confined, its effectiveness will be severely curtailed) or if it can investigate using a less elaborate, time-consuming and expensive procedure where it deems that appropriate.”
The watchdog also pointed out that in addition to lack of independence, the commission’s effectiveness would be hampered by lack of transparency, if some secrecy clauses contained in the Bill are allowed to sail through.
It also pointed out that the clause giving the Minister powers to authorise funding from sources outside of government as well as the inordinate delay in the operationalisation of the commission would also further hamper its work.
“If the commission does not receive adequate funding it will be unable to do much no matter what the Bill says. The government allocated only US$200 000 to the Commission for the 2016 financial year, a ridiculously small amount that will not enable the commission to engage staff, hire premises and start doing what the Constitution mandates it to do. The commissioners were appointed only in November last year and have not yet been sworn in, so they have not assumed office and cannot do anything at all. If they are not sworn in quickly so that they can enter office and get down to work in terms of section 320(5) of the Constitution, the Commission will have little time to achieve much before its 10-year lifespan expires in 2023.”