NPRC Bill should be subjected to thorough scrutiny

By The NewsDay | Feb. 12, 2016 | 4 Min read

The long-awaited National Peace and Reconciliation Bill, which provides for the establishment and composition of the National Peace and Reconciliation Commission, has now been introduced in Parliament.

This paves the way for the relevant portfolio committees to scrutinise the draft legislation, consult interested parties and report to plenary.

The relevant portfolio committee in this case is the one on Defence, Home Affairs and Security Services. The Senate thematic committee on Peace and Security also has a major stake in this Bill. It is, therefore, possible that the two committees shall jointly carry out public hearings on the draft legislation in order to solicit public input as required under section 141 of the Constitution.

Just like the other independent commissions, the Bill does not breed confidence that the National Peace and Reconciliation Commission shall have adequate resources and financial autonomy to effectively discharge its duties.

Now that the Bill is in the public domain, public debate is highly encouraged in order for members of parliament to eventually pass something that can be described as good law, and that promotes the much-needed peace and security, which is one of the key determinants of capital inflows into the country.

The National Peace and Reconciliation Commission is one of the five independent commissions established by the Constitution to achieve the following objectives: support and entrench human rights and democracy; protect the sovereignty and interests of the people, promote constitutionalism, promote transparency and accountability in public institutions and ensure that injustices are remedied.

Section 235 of the Constitution explicitly states that independent commissions are not subject to the direction and control of anyone, and that they must exercise their functions without fear, favour or prejudice.

So the first characteristic that one has to pay attention to when deciding whether the Bill is good law or not, is the extent to which the National Peace and Reconciliation Commission exercises its functions independent of ministerial interference.

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Once you have provisions such as clause 8(7) that gives the Minister power to stop disclosure of evidence by simply issuing a certificate, then this compromises on the independence of the Commission. Section 235 (3) states that “No person (including ministers) may interfere with the functioning of the independent commissions”. The commissions are accountable to Parliament not ministers.

The National Transitional Justice Working Group (NTJWG), a grouping of civil society organisations in Zimbabwe working on justice and reconciliation issues, has already expressed its concern over some provisions of the Bill, especially those relating to lack of independence.

For example, the CSOs have noted that while the Constitution creates a Commission that has power to hire its own secretariat, the Bill gives the Minister power to appoint civil servants to work as the secretariat of the National Peace and Reconciliation Commission. This blatantly violates section 234 of the Constitution which empowers independent commissions to “employ staff and, subject to the law, regulate their conditions of service”.

The NTJWG has made reference to the United Nations Rule of Law Tools for Post-Conflict States, which says the legitimacy and public confidence that are essential for a successful truth commission process depends on the commission’s ability to carry out its work without political interference.

The tool further states that once established, the commission should operate free of direct influence or control by the government, including in its research and investigations, budgetary decision-making, and in its report and recommendations.

The proposed legislative framework is a far cry from these UN standards. It would appear the commission is being established as a mere department in a ministry such as the current Organ on National Healing, Reconciliation and Integration, which is located in one of the Vice Presidents’ office.

The other issue of concern is that the mandate of the Commission as spelt out in the Bill is blurred, and not in sync with the Constitution. It is not clear if the Commission will deal with past conflicts. Failure by the Commission to address past injustices will make reconciliation a very difficult task. Some of the elements of the South Africa Truth and Reconciliation Commission should be adapted in the work of the Commission.

Ministerial approval of financial donations as provided for in the Bill stifles the independence of the Commission. Infact, the other independent commissions have failed to discharge their duties effectively because they are starved of financial and material resources.

Section 323 of the Constitution requires every commission to submit to Parliament an annual report describing fully its operations and activities by March 31 of the following year. The reports are submitted through the relevant minister. I have not seen the commissions complying with this constitutional requirement.

This is a matter that should be debated extensively in order for the Bill to include penalties for non-compliance with reporting requirements.

Otherwise, the accountability of independent commissions to Parliament will remain on paper.

I also need to highlight that the Commission is now only left with about seven years to operate. The life span of the Commission is 10 years counting from the date that the new Constitution came into effect. The Commission cannot effectively carry out all those functions outlined in section 252 of the Constitution within such a short period of time.

The peace and security committees of Parliament and the Parliamentary Legal Committee must therefore thoroughly scrutinise the draft legislation and table an informed report in the House. This Bill is of such national importance that it cannot just be rubber stamped. Peace and security and national reconciliation are necessary for attracting capital and reviving the economy.

l John Makamure is the executive director of the Southern African Parliamentary Support Trust. Feedback: [email protected]