The Zimbabwe Lawyers for Human Rights (ZLHR)has castigated some sections of the Independent Complaints Bill saying some of the proposed provisions are open to abuse by the state.
Late last year, the cabinet approved the formulation of the Zimbabwe Independent Complaints Commission Bill H.B. 5, 2020 that would operationalize section 210 of the Constitution of Zimbabwe which provides that “An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”
The Bill will, therefore, establish an independent commission that will allow complaints of misconduct from members of the public against members of the security services to be investigated and provide remedies for such misconduct.
The Bill also makes provision for the functions, composition, and obligations of the Commission.
However, the ZLHR says some sections are tantamount to state abuse.
Sections in question include section 6 which provides for the composition of the Commission, made up of five members. The Chairperson is a person eligible for appointment as a High Court Judge, a sitting Judge, or a former judge appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders of Parliament.
Commenting on this, the ZLRH said: “This provision is open to abuse. In the appointment of the Chairperson of the Commission, the President is given broad powers to freely appoint the Chairperson after and not in consultation with the Judicial Service Commission (JSC). The implication is that the President is not bound to follow the advice of the JSC and may appoint whoever he/she desires without scrutiny. Whether the President consults or not is hidden in obscurity.”
The ZLHR further stated that there is no clarity on why only four members of the Commission are appointed from a list of nominees submitted by the Committee on Standing Rules and Orders of Parliament to the exclusion of the Chairperson of the Commission.
“To ensure the Independence envisaged by section 210 of the Constitution, the appointment process for the Chairperson should be the same as for the other four members of the commission. It also enables parliament to exercise its oversight role over the independent mechanism,” the recommendations read.
The other clause which came under scrutiny is clause 9 which provides for the appointment of the Executive Secretary of the Commission and other members of the Commission who will be part of the public service and not the Civil Service.
Under the clause the Executive Secretary is mandated with the following:
(a) Responsible for carrying out the decisions of the Commission and the executive day-to-day administration and management of the affairs, staff, and property of the Commission
(b) The custodian of the Commission’s records;
(c) Must attend all meetings of the Commission, but has no vote on any matter before the Commission, and Act as may be assigned to him or her by the Commission.
(d) Must perform any other functions in connection with this.
The ZLHR, however, said this provision undermines the independence of the Independent Complaints Mechanism by placing the appointment of the Commission’s Executive Secretary in the hands of the President, a member of the executive.
“This is a violation of the doctrine of the separation of powers. As a presidential appointee, the Executive Secretary is susceptible to undue influence, thereby threatening the functioning of the Commission.
“Since this is an executive appointment, solely made by the President there is no guarantee that the appointment will be based on need, or motivated by the experience and expertise of the person to be appointed.
“This provision should be revised because it violates section 210 of the Constitution to the extent that it fails to guarantee the independence of the independent complaints mechanism,” the pressure group said.
In addition, clause 15 which provides for the conduct of hearings or inquiries by the Commission in respect of any complaint submitted to it if it considers it necessary to do so, Clause 16 provides for measures to be taken following investigations, hearings or inquiries; Clause 18 provides for offenses for failure to comply with orders of the Commission and clause 23 which provides that the Public Entities Corporate Governance Act [Chapter 10:31], applies in every respect to the Commission in its capacity as a public entity provided that it is not inconsistent with any provision of the Independent Complaints Commission Bill.
