By Kenias Shonhai
The Zimbabwe Independent Complaints Commission Bill (ZICC) is an activation of the Constitutional provision which states in Section 210 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 government was very reluctant to give life to this Constitutional provision. As a result, Veritas in 2015 took the government to the Constitutional Court for an order calling on the Government to enact legislation implementing section 210. On the 23rd September 2020 the Constitutional Court finally gave judgment in the case, giving the Government 45 days in which to gazette the requisite Bill. The Government did not meet that deadline, but on 27 November 2020 Bill H.B.5, 2020 titled Zimbabwe Independent Complaints Commission Bill was gazetted.
The inclusion of section 210 in the Constitution came as a result of human right violations perpetrated by members of the security services which were being swept under the carpet. Members of the public had been filing reports with the relevant security sector or with the police but to no avail. The Constitution drafters then saw it prudent that an independent complaints mechanism be set up to deal with misconducts of the security services personnel. Notwithstanding the fact that the Constitution had given the impetus to such a noble mechanism, the government of Zimbabwe was dragging its feet to operationalize section 210 for the reason best known to them. It took a court order for them to comply but way after the compliance date.
Contents of the Bill
If one looks at section 210 of the constitution there are operative words or phrases which should be taken note of in operationalizing that section.
- There must be a complaints mechanism
- Which must be effective
- Which must be independent
- For receiving complaints
- From members of the public
- Investigate the complaints
- On misconducts of members of the security services
- And remedying any such harm caused.
The Key Question to be asked is, does the Bill ensure that all the operative words or phrases have been given effect to?
It is a welcome move that at last, even though it had to be pushed, the government of Zimbabwe has gazetted the Bill. However, if the Bill has to be a good Bill and ultimately a good law it should give effect to both the spirit and letter of section 210 of the constitution. The Bill has a lot of shortcomings which if not remedied, the ZICC will become a white elephant.
There are some major sticking points in the Bill which includes but are not limited to:
- Lack of independence. Independence is eroded by the appointment process of the Commissioners, the assigning of the Act to the President, the role of the President who is both the commander in chief of the Defence Forces and the head of State, the involvement and the role of “Advisors” who are drawn from the security sector.
- There is also no witness protection.
- Matters to be held in camera are not specifically defined.
- There is a general feeling that matters to do with rape should not be affected by prescription which in the Bill is 3 years.
- There is no clear relationship between this Commission and other independent Commissions.
Functions of The Commission
- The relationship between the Commission and ZHRC is blared particularly in relation to inspection of places of detention and making any recommendations thereafter s 5(1)(c)
- Sec 6(1)(d) one must be a person with experience in any security services. This can mean a serving or a retired member of the security service yet the Commission must be independent. It must be clear that members or former members of the security services should not be part of the Commission.
- Section 6 para 5, 6 & 7…. Advisor and his role in the independent Commission will water down the independence of the Commission. In any case among the Commissioners there is one Commissioner who has security sector “experience” which means is a former or serving member. Mathematically it means there will be 2 members from the security service. This will erode any notion imaged or real of independence.
- Sec 8, The Chairperson appointed by the President after consultation with the JSC
- Vice chairperson appointed by the President from among the commissioners? Why is the President so involved in this Commission? Independence of the Commission becomes questionable.
- Sec 11, the Commission must report to parliament annually through the President or any other minister the President my assign. Why is the President so interested in this Act? Remember he is the commander in chief of one of the security sector, ZDF. Remember in terms of the law the sitting President is immune to prosecution. What it means is that the President can violate this Bill (Act) with impunity/immunity and the perpetrator by extension will enjoy the same. This will foil the effectiveness of the Commission.
- Sec 12 Are they appointed as employees of the Commission or they will be seconded from the security sector? There is need for clarity. If they are seconded from the security sector, will they be able to serve two masters at the same time with impartiality and independence? If they are employees what will be their terms of employment.
Reporting of Complaints
- Sec 13, Rape cases by their nature should not be subjected to the 3 years prescription. They should be given a longer period say 20 years for them to prescribe.
- There is a clear relationship between the Commission and the courts but there is no defined relationship between the Commission and other independent Commissions as well as security sector disciplinary proceedings. It is prudent that this Commission respects other Commissions but when it comes to internal disciplinary proceedings by the security sector the matter must be halted and transferred to the Commission.
Sec 29, The Commission is not self-regulatory; it is the President or the minister who crafts regulations for the commission. It is not even clear if the crafting of regulations is done with the involvement of the Commission or not. How can an independent body not be able to regulate itself?
Accessibility and Capacity of the Commission
It goes without saying that for an effective mechanism, it must be accessible by all the stakeholders and the officers/commission must be adequately resourced so as to effectively carry out its mandate.
Persons violated by members of the security services should promptly receive information, both orally and in writing, about all avenues of complaint, both internal and external to the places in which they are to be lodged. They should also have a clear understanding of the modalities for exercising their right to lodge a complaint. For this purpose, appropriate information tools should be developed and made available to them, in straightforward, user-friendly and non-legalistic formats.
It should also be stressed that the capacity of the Commission to carry out their task depends largely on the allocation of adequate resources to their functioning, including human resources. Staff working for these bodies should receive appropriate training and be sufficient in number. Where necessary, they should be able to call on consultants or independent specialised support staff. The funding provision is warped. Experience is rife that the funding of the already existing Commissions is an issue of major concern. If the government is dragging its feet to enact the law, what more to fund the establishment?
The gazetting of the Bill is a move in the right direction for the operationalization of section 210 of the Constitution. It is acknowledged that the Bill has some major shortcomings which if not attended to; the Bill will not fulfil the Constitutional provisions. Effectiveness, accessibility and independence are the cogs of the Commission. However, whatever limitations and defects the Bill may have, may not matter much in practice because the Commission’s effectiveness and independence will depend more on the integrity and qualities of its members and staff than on the provisions of the law under which it operates. Again, the very fact that such a Commission is in existence may go some way to deter members of the security services from committing misconduct.
Kenias Shonhai is a Projects Lawyer at the Zimbabwe Human Rights Association. Comments to this article can be send to email@example.com For more information about our work, please visit our website on www.zimrights.org.zw