[Bill-Watch] Constitution Watch 41/2013 of 25th November [The Constitution : National Peace and Reconciliation Commission: Part II]

[Veritas Bill Watch]

CONSTITUTION WATCH 41/2013
[25th November 2013]
Giving Effect to the Constitution
The National Peace and Reconciliation Commission - Part II
Is the Commission a Truth and Reconciliation Commission?
The answer to this question must be found by interpreting one of the
Commission's functions, set out in Part I, namely: "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."
This function is worded vaguely, probably deliberately so.  Two of the
parties to the constitutional drafting process, the MDC formations, were in
favour of establishing a truth and reconciliation commission to investigate
human rights abuses that took place after Independence, particularly in
Matabeleland.  The other party to the process, ZANU-PF, was against.  The
result is that the Commission can only "encourage" people to tell the truth
about past abuses;  it cannot compel them to do so.  It is unclear what
inducements, if any, the Commission can offer to encourage people to come
forward and tell the truth.
The South African Truth and Reconciliation Commission was established with
the stated objective of promoting national unity and reconciliation by:
.      establishing as complete a picture as possible of the causes, nature
and extent of human-rights violations committed between 1960 and the end of
apartheid,
.      facilitating the granting of amnesty to people who made full
disclosure of politically-motivated violations of human rights, and
.      establishing the fate or whereabouts of victims of those violations.
To enable it achieve that objective the Commission could, through its
Committee on Amnesty, grant amnesty to persons who applied for it and made
full disclosure of all relevant facts about their involvement in
human-rights violations.  Persons granted amnesty were absolved from all
civil or criminal liability for their conduct.
The South African Commission was established by an Act of Parliament, but
its establishment, and its power to grant amnesties, were specifically
authorised by that country's interim constitution, and by the final
constitution.  There is no provision in our new Constitution which states
expressly that the National Peace and Reconciliation Commission can grant
amnesties to people who tell the truth about the past, and no such power can
be implied.
Despite there being no provision in our Constitution, an Act of Parliament
could probably give the Commission power to grant amnesty from criminal
liability to people who tell the truth about their crimes.  The President
must assent to all Acts of Parliament, so such an Act could be construed as
a delegation by the President of his constitutional power to grant
amnesties.  But, such an Act could only exonerate repentant truth-tellers
from criminal liability and could not override the victims' constitutional
right of access to the courts to obtain civil redress. 
A point to remember is that the question whether or not the Commission can
grant amnesties is largely academic because of amnesties that have already
been given by the government.  A general amnesty was granted at Independence
to perpetrators of politically-motivated crimes committed before 1st March
1980, and in 1988, an amnesty was granted to perpetrators of human-rights
abuses committed during the so-called Gukurahundi operation in Matabeleland
between 1982 and the end of 1987.  Other amnesties have also been given to
individual offenders.  As a result, most people who were involved in past
human-rights abuses have already been amnestied, so any further power
granted to the Commission would be unlikely to induce them to come forward
and tell the truth about their crimes.
To sum up, the Commission is not a truth and reconciliation commission along
the lines of the South African model, since it has no constitutional power
to grant amnesties to people who co-operate with it and tell the truth about
their past crimes.  An Act of Parliament could confer such a power on the
Commission, but the amnesties would confer immunity from criminal
prosecution only, not from civil liability.  In any event, many of the
offenders have already been amnestied.
What, If Any, Powers Should be Conferred on the Commission by an Act of
Parliament?
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, but there are some powers that need to be
conferred on it which would enable it to carry out its constitutional
functions more effectively:
.      Power to summon witnesses to give evidence.  Obviously this power
will be necessary if the Commission investigates past abuses, but even if it
doesn't it may have to ascertain the truth behind current disputes before
trying to reconcile the parties.  The Commission could not, however, use
this power to compel witnesses to answer incriminating questions and so
render themselves liable to criminal prosecution.
.      Power to search for and demand the production of documents.  Again,
documentary evidence may be needed to find out the causes of current
disputes, e.g. distribution of resources;  it may also be necessary to
establish the appropriate treatment for people who have been subjected to
torture or physical abuse.
.      Power to demand information from State institutions and other bodies.
For example, if the Commission is to develop mechanisms for the early
detection of potential conflicts and disputes, which is one of its
constitutional functions, it may need to analyse crime statistics obtained
from the Police.
.      Power to refer disputes to compulsory mediation or arbitration.
Parties to disputes may not be willing to accept the Commission's mediation,
and it may be in the national interest to compel them to undergo the
necessary processes to resolve the disputes.
The Constitution does not give these powers to the Commission expressly or
by implication, so if the Commission is to exercise them they will have to
be conferred on it by an Act of Parliament.
Funding of the Commission
It goes without saying that the effectiveness of the Commission will depend
in large measure on whether it receives adequate funding.
The Constitution requires Parliament to appropriate sufficient funds to all
the constitutional commissions to enable them to exercise their functions
effectively and that the commissions must be given a reasonable opportunity
to make representations to a Parliamentary committee about the funds to be
allocated to them [section 325].  The Constitution goes further and states
that separate estimates of revenue and expenditure must be given for each of
the constitutional commissions [section 305(3)].  These are welcome
provisions and will go some way towards ensuring that the Commission is not
left in the position of some of the commissions established by the previous
Constitution, dependent for their revenues on niggardly allocations
dispensed by a parent Ministry.
However, even with these constitutional provisions, the adequacy of the
Commission's funding will in the last resort depend on how much money the
Treasury thinks it can spare --- which may not be very much.
It may be noted that there is no provision in the Constitution giving the
Commission the right to seek funding from outside government, so it may be
in the same position as the Zimbabwe Human Rights Commission, having to seek
permission from the government before accepting outside donations. 
Life-span of the Commission
The Commission's life-span is 10 years, and after that it will cease to
exist as a constitutional commission.  Should it be allowed simply to
vanish, or should it be continued, perhaps in another form?
The first point to make is that it would be legally possible to extend the
life of the Commission.  By stating that the Commission will exist "for a
period of ten years after the effective date", the Constitution does not
mean that there must never again be a similar commission.  That would be
absurd, tantamount to saying that Parliament is prohibited from establishing
another body to promote national healing and dialogue.  Hence, at the end of
the Commission's ten-year life-span Parliament could pass an Act
re-establishing the Commission as a statutory body with the same powers and
responsibilities.
Whether it will be desirable to re-establish the Commission in ten years'
time is something that must be decided in the light of circumstances at that
time, but three points can be made at this stage:
.      The Commission's functions include developing and implementing
programmes to promote national healing and unity, developing procedures to
facilitate inter-party dialogue, and developing mechanisms for detecting
areas of future conflict.  If the Commission develops these programmes,
procedures and mechanisms, someone will have to run and maintain them after
the Commission has ceased to exist.
.      The Commission is obliged to submit annual reports to Parliament on
its activities, and will be expected to make recommendations about the
promotion of national healing.  Again, someone should ensure that its
recommendations are implemented after the Commission's ten-year life has run
its course.
.      Finally, and most obviously, even if the Commission carries out its
work conscientiously and effectively, areas of potential conflict are likely
to remain after ten years have elapsed, and there should be a commission or
some other body in existence ready to deal with them.
For these reasons, then, the government will almost certainly have to
establish a new commission or some sort of similar institution[s] after the
Commission has ceased to exist.
 
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