[Bill-Watch] Constitution Watch 40/2013 of 25th November [The Constitution : National Peace and Reconciliation Commission, Part I]

[Veritas Bill Watch]

CONSTITUTION WATCH 40/2013
[25th November 2013]
Giving Effect to the Constitution 
The National Peace and Reconciliation Commission - Part I
Introduction
Section 251 of the Constitution establishes an independent commission called
the National Peace and Reconciliation Commission whose functions are, very
broadly, to bring about national reconciliation in Zimbabwe.  The Commission
is intended to continue the work of the Organ for National Healing,
Reconciliation and Integration which was set up pursuant to article 7 of the
Global Political Agreement;  in that sense at least the Commission can be
regarded as a continuation of the Organ under another name.
In this Constitution Watch we shall look at how the Commission can be set
up, what its functions are, and what additional measures will be necessary
to enable it to carry out its functions effectively.
Establishment of Commission
Strictly speaking, the Commission has already been established by section
251 of the Constitution, which states:
"For a period of ten years after the effective date [i.e. when the
Constitution came fully into force -  22nd August 2013], there is a
commission to be known as the National Peace and Reconciliation Commission
."
The words "there is a commission ." mean that the Commission automatically
came into existence as soon as the Constitution became operative.  However,
it exists only on paper, i.e. only in a legal sense, because without members
or employees it cannot do anything.  For the Commission to be established
properly it needs members and staff.
Appointment of Members
The Commission - when it is established properly - will consist of a
chairperson and eight other members.
The chairperson
The chairperson must have been qualified for at least seven years to
practise as a legal practitioner, and is appointed by the President after
consultation with both the Judicial Service Commission and Parliament's
Standing Rules and Orders Committee.  The President does not have to get the
agreement of those two bodies before appointing a chairperson, but if he
appoints someone contrary to a recommendation of the Judicial Service
Commission, he must inform the Standing Rules and Orders Committee 
Deputy chairperson - the appointment of a deputy would have to be authorised
by an Act of Parliament and he or she must of a different gender from that
of the chairperson [section 320(4) of the Constitution].
Other commissioners
The other members of the Commission are appointed by the President from a
list of at least twelve nominees submitted by the Committee on Standing
Rules and Orders.  These nominees are chosen by the Committee in a
transparent process laid down by section 237 of the Constitution.  The
Committee must advertise the vacancies on the Commission and invite public
nominations, then conduct public interviews of prospective candidates for
appointment.  This will probably not prevent political considerations
intruding into the selection of nominees but it will at least allow the
public to monitor the process and, possibly, hold politicians to account if
they select nominees who are obviously unsuitable.
Political neutrality of commissioners
Members of the Commission, including the chairperson, must be independent
and politically neutral;  if they are members of a political party on their
appointment to the Commission they will have to relinquish that membership
within 30 days after being appointed [section 236 of the Constitution].
Members of Parliament, provincial councils, local authorities, parastatals
and other State-controlled entities are not eligible for appointment to the
Commission [section 320 of the Constitution].
Term of office of commissioners
The chairperson and other members are appointed for five-year terms which
can be renewed once, so they cannot serve on the Commission for more than
ten years - which, according to section 251 of the Constitution, is the
life-span of the Commission.
Appointment of Staff
The Commission has power to employ staff, subject to the Labour Act and
other such laws [section 234 of the Constitution].  No doubt the Commission
will be able to take civil servants on secondment from the Commission's
parent Ministry, but it cannot be compelled to do so because that would
compromise its independence.  In other words, the Commission can agree to
take on seconded staff but the government cannot foist staff upon it.
The Commission may in fact have to rely on seconded staff because its
life-span is only ten years.  Potential employees may be reluctant to join
an organisation which cannot offer them long-term employment.
Political neutrality of staff
There is nothing in the Constitution that requires members of the
Commission's staff to be politically neutral, but the very nature of the
Commission's objective, to bring about political reconciliation in Zimbabwe,
will demand at least some degree of impartiality.
Is the Commission the Successor to the Organ?
As already mentioned, the Commission is the successor to the Organ for
National Healing, Reconciliation and Integration in the sense that it will
perform much the same functions as the Organ.  It is not, however, the
Organ's successor in a legal sense.  Members of the Organ will not
automatically become commissioners, though if they are suitably qualified
and pass the constitutional selection process they can be appointed as
commissioners.  Members of the Organ's staff, similarly, will not
automatically be employed by the Commission but there is nothing to stop the
Commission engaging them.  For the time being the Organ's staff members form
a department in the President's Office, so presumably they are now civil
servants.  If they join the Commission as full-time staff they will have to
leave the civil service; but if, as suggested above, the Commission has
difficulty engaging its own staff it may have to accept them on secondment.
Functions of Commission
Section 252 sets out the Commission's functions at length and in very broad
terms: 
.      to ensure post-conflict justice, healing and reconciliation;
.      to develop and implement programmes to promote national healing,
unity and cohesion in Zimbabwe and the peaceful resolution of disputes;
.      to bring about national reconciliation by encouraging people to tell
the truth about the past and facilitating the making of amends and the
provision of justice;
.      to develop procedures and institutions at a national level to
facilitate dialogue among political parties, communities, organisations and
other groups, in order to prevent conflicts and disputes arising in the
future;
.      to develop programmes to ensure that persons subjected to
persecution, torture and other forms of abuse receive rehabilitative
treatment and support;
.      to receive and consider complaints from the public and to take such
action in regard to the complaints as it considers appropriate;
.      to develop mechanisms for early detection of areas of potential
conflicts and disputes, and to take appropriate preventive measures;
.      to do anything incidental to the prevention of conflict and the
promotion of peace;
.      to  conciliate  and  mediate disputes  among communities,
organisations,  groups  and individuals; and
.      to  recommend  legislation  to  ensure  that  assistance,  including
documentation,  is rendered to persons affected by conflicts, pandemics or
other circumstances.
An Act of Parliament can confer additional functions on the Commission, so
long as the functions do not compromise the Commission's independence or
effectiveness [section 321 of the Constitution].
So broad and vague are the Commission's functions that it will be largely up
to the commissioners to decide which of them to concentrate on and which to
put on a back-burner.  Specifically, they may choose to concentrate on the
prevention of future conflicts rather than to investigate the origins of
past ones;  indeed, they may have to make such a choice because they are
unlikely to be given sufficient resources to carry out all their functions
fully and effectively, and the government may be reluctant to finance an
investigation of abuses that took place while current politicians were in
power.
The choice between investigating past abuses or instead concentrating on
preventing future conflicts is likely to be highly controversial.  Most
civil society organisations favour the former;  the government, as already
noted, probably favours the latter.  In making the choice, commissioners
should bear in mind that the investigation of past abuses is not an end in
itself.  It is important only to the extent that, by exposing and healing
past wounds, it serves to prevent similar wounds being inflicted in the
future.
Does the Commission Need an Act of Parliament Before it Can Function?
Many of the commissions established under the Constitution operate under
Acts of Parliament which give them additional powers and lay down procedural
rules under which they operate.  For example, the Zimbabwe Electoral
Commission operates under the Electoral Act, the Zimbabwe Human Rights
Commission under the Zimbabwe Human Rights Commission Act, and the Zimbabwe
Anti-Corruption Commission under the Anti-Corruption Commission Act.  But
the fact that many commissions have their own Acts of Parliament does not
mean they all need one.  The National Peace and Reconciliation Commission
could exercise most of its functions without any additional legislation,
simply using the powers given to it by the Constitution.  In other words,
the Commission could start functioning as soon as its members have been
appointed, so long as it is given adequate financial resources to do so.  We
say this for the following reasons:
.      Section 342 of the Constitution states that all constitutional bodies
"have all powers necessary for them to fulfil their objectives and exercise
their functions".  So the Constitution itself gives the Commission all the
necessary powers.
.      To the extent that commissioners need rules of procedure to conduct
their meetings or to regulate how the Commission is to exercise its
functions, section 321(4) of the Constitution allows them to determine their
own procedures, so long as the procedures are fair and promote transparency.
.      The Commission's predecessor, the Organ for National Healing,
Reconciliation and Integration, existed for several years without any
legislation to back it up.
Whether the Commission can exercise all its functions without legislation
depends on the extent of those functions:  in particular, it depends on
whether the Commission was intended to play a purely mediatory role in
bringing about national healing and reconciliation, or was supposed to
exercise more than mere persuasion in bringing people together.  More
specifically, did the constitution-makers intend the Commission to act as a
truth and reconciliation commission on the South African model?   
This and related topics will be discussed in Part II.
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