The Parliamentary Legal Committee has produced a damning report on the National Peace and Reconciliation Bill.
by Everson Mushava
The report, produced by the Jonathan Samukange-led committee in February, concluded that the Bill did not conform to the Constitution.
It cited eight clauses that were in contravention of the Constitution which range from the administration of the peace commission to the manner it is required to despatch its duties, but would have a net effect of whittling down the parent ministry’s role in the day-to-day running of the commission.
The committee said the Bill was defective on the removal of term of office of the commissioners.
According to the report, the President does not have the power to terminate a commissioner’s contract before the constitutionally mandated five years unless the person resigns or is appointed to another post.
“Further, the reappointment procedure set out in clause 3 (1) suggests that there is automatic reappointment without having to go through the procedure set in section 237 of the Constitution.
This contravenes section 237 of the Constitution as read with section 340 of the Constitution which sets out the appointment procedure of members of Independent Commissions,” part of the report read.
The report also stated that the committee on Standing Rules and Orders cannot conduct performance appraisals of commissioners because it is the one responsible for recommending them to the President. The Judicial Service Commission will not be constitutionally mandated to review a commissioner’s performance for re-appointment.
The legal committee also proposed that a clause limiting the peace commission’s activities because they should report to the minister was unconstitutional as this would limit the constitutional role of the commission.
The report also criticised the use of ministerial certificates in investigations and hearing of cases in camera saying it would be difficult to evaluate if justice was achieved. The committee said ministerial certificates should be subject to judicial review.
“The power given to the minister to implement the recommendations of the commission is unconstitutional as it infringes on the independence guaranteed in section 235. In terms of the Constitution, the minister is a conduit of the commission as far as tabling reports of the commission in Parliament in terms of section 324,” the report further said, pointing out that such practice would infringe on the independence of the commission.
The Samukange report further said the minister should not be allowed to second staff to the commission as the Constitution provided the commission with powers to recruit staff. The report also said donations should be received by the commission, not minister, and the minister should not have a say in the investment of free cash by the commission.
“Paragraph 7 states that the Commission needs the minister’s approval to establish and
administer funds not specifically provided for in the Act as the commission considers appropriate for the proper exercise of its functions. The constitutional issues herein are related to those expounded in para 4 for clause 14,” the report said.