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Priorities for the harmonisation of legislation with the 2013 Constitution of Zimbabwe PDF Print E-mail

© reserved, Zimbabwe Lawyers for Human Rights, May 2015

 

The Constitution of Zimbabwe Amendment (No.20) Act of 2013 (“the Constitution”) provides the framework of protections, obligations, rights and fundamental freedoms accorded all persons in Zimbabwe. These form the bedrock of democracy and act as an all-important bulwark against the government of the day and other state and non-state actors misusing their power against people. Consequently, it is critical that all other laws and subsidiary legislation be aligned with the provisions contained in the new Constitution in a timely and transparent manner.


The Constitution is the supreme national legal document. The moment that it came into effect, the rights, freedoms and responsibilities contained in it became valid and enforceable by the holders of such rights and freedoms. It must be made clear that any legislation or regulations that are not in line with the contents of the Constitution are immediately null and void. There is no need to wait for alignment of legislation before asserting such constitutional rights, freedoms and responsibilities. Delay in alignment is not a valid excuse to be used by authorities, but it has certainly contributed to the continued disregard of constitutional provisions by certain arms of government and their officials. This, however, does not absolve the executive, the legislature and legislative drafters from speedily ensuring that harmonisation occurs, and further that it is done in a manner that takes into consideration the human rights norms and standards that Zimbabwe has voluntarily accepted at the United Nations and African Union levels.

What must further be noted is that harmonisation of laws with the new Constitution is not the end of the matter. Honest and firm compliance, respect for constitutionalism, and political will is required if people are to be empowered to assert their constitutional rights and freedoms.

Every provision of the Constitution is important and must be adhered to. However different stakeholders will identify different priorities for legislative harmonisation. It can however be argued that legislation hindering the enjoyment of the Declaration of Rights is perhaps the ultimate priority for harmonisation.

This analysis sets out the laws that Zimbabwe Lawyers for Human Rights (ZLHR) has identified as requiring prioritisation for reform in line with its strategic priority areas as a law-based organisation invested in ensuring the promotion of a culture of human rights, equality and respect for the rule of law for a just and democratic society in Zimbabwe. These include:

(a) Increasing access to civil, social and economic justice;

(b) Strengthening the efficiency and effectiveness of state institutions (justice) in delivering on their mandate and accounting to the public;

(c) Increasing rights literacy and public participation in Zimbabwe’s governance issues; and

(d) Protecting the rights and safety of human rights defenders.

The priority list is not exhaustive; many other laws not listed here will still need to be aligned with the Constitution. Key areas championed by other stakeholders, in some cases with the support of ZLHR, such as labour rights, women’s rights and property rights, must also be attended to so as to give full effect to the Constitution.

Below is a preliminary list of legislation (including associated regulations) that must be urgently revised to bring it into conformity with the new Constitution and contribute to achieving the priorities identified in (a) to (d) above. It should be noted that these four priorities are organically interlinked; for the purposes of this paper, where legislation requiring amendment has been mentioned under one priority area, it is not repeated under another unless the provisions address different issues.

ZLHR Priority Area

Chapter of the Constitution

Legislation  Requiring  Amendment

Summary of Required Amendments

Commentary

Increasing access to civil, social and economic justice

Chapter 3: Citizenship

Citizenship of Zimbabwe Act [Chapter 4:01] and regulations

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Citizenship continues to be a highly contested and politicised issue in Zimbabwe. The Act is regularly misused against Zimbabweans to deny or revoke citizenship, and in many instances has led to statelessness, which is prohibited under international law. Citizenship issues do not only affect the civil rights of an individual, such as freedom of movement and ability to participate in governance issues, but they also have a deleterious knock-on effect on issues such as registration of births, education, access to health, housing, and other services.

Many people have been denied access to passports because they have actual or potential dual citizenship. This situation has only been remedied after legal intervention. The alignment of this Act with the Constitution is critical to facilitate issuing of national documents to holders of dual citizenship and to punish malfeasance by the office of the Registrar General.

Immigration Act [Chapter 4:02]

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This Act automatically prohibits those with dual citizenship from using a non-Zimbabwean passport when entering Zimbabwe. They are therefore unconstitutionally treated as foreigners in their own country.

Chapter 4: Declaration of Rights

Section 48 - Right to life

Criminal Law (Codification And Reform) Act [Chapter 9:23]

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Section 48 of the Constitution leaves some uncertainty on the position in our law with regard to those who seek to rely on self-defence for killing a person, as it does not include any provisos that the right to life does not apply in such circumstances. This is not the position in international law; however it could have been made clearer in the Constitution.

Prisons Act [Chapter 7:11]

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The trend in prisons has been to punish and condemn prisoners and not to correct, rehabilitate or reform. The Constitution renames the Prisons Service to ‘Prisons and Correctional Services’. The correctional element which seeks to rehabilitate rather than to punish should be reflected in the regulatory laws.

Chapter 4: Declaration of Rights

Section 49 - Right to personal liberty

Magistrates Court Act [Chapter 7:10]

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Civil imprisonment – used in Zimbabwe for many years – has been abolished in many countries, and now has been done away with in the new Constitution, which states that no person may be imprisoned merely on the ground of inability to fulfil a contractual obligation. This will bring relief in the current difficult economic conditions where people are now taking drastic measures to recover debts in contravention of the new provisions.

Criminal Procedure and Evidence Act [Chapter 9:07]

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In the past, prosecutors have abused this provision - section 121 of the Criminal Procedure and Evidence Act - to further incarcerate people who would otherwise have been released on bail, in violation of the right to liberty.

Privileges, Immunities and Powers of Parliament Act [Chapter 2:08]

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This provision does not currently make it clear how severe the offence must be before one can be arrested in terms of this provision. Anyone found disturbing proceedings of parliament can be arrested at the order of the Speaker and kept in the custody of an officer of parliament or police until a warrant is issued for detention at prison. The Speaker does not have to obtain a warrant before arresting anyone and the decision passed cannot be appealed. This potentially violates fundamental rights, including the right to personal liberty, protection of the law, and presumption of innocence.

Chapter 4: Declaration of Rights

Section 66 - Freedom of movement and residence

Criminal Law (Codification and Reform) Act [Chapter 9:23]

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Restrictions on freedom of movement and residence have manifested in various ways. Most recently, loitering laws have been misused to arrest and detain women found in certain parts of cities (usually alone) at night. This, in effect, imposes unofficial “curfews” on women, and restricts their freedom of movement and personal safety.

Vagrancy Act [Chapter 10:25]

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Vagrancy laws have also been used in a heavy-handed and abusive manner to clamp down on street children, as well as the homeless – particularly those with mental disabilities.

Protected Places and Areas Act [Chapter 11:12] and regulations

Official Secrets Act [Chapter 11:09]

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  • · Insertion of objective criteria for designating a place as ‘prohibited’
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  • · Review of provisions that criminalise loitering within 100 meters of vicinity of protected places
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Laws and regulations have also been misused and abused to prevent free movement of traffic, persons, and residence on the basis of declaring such areas “protected” or “security areas”. This is usually done without proper administrative procedures being followed.

There is also no clarity on which places are protected places. All protected places should be publicised including an obligation to have some visible placards for people to be aware of their location.

Immigration Act [Chapter 4:02]

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The constitutional provision for freedom of movement is wide and, for Zimbabwe citizens, includes the right to enter Zimbabwe, the right not to be expelled from Zimbabwe, and the right to a passport or other travel document. For other persons legally in Zimbabwe, it includes the right to move freely within Zimbabwe; the right to reside in Zimbabwe, and the right to leave Zimbabwe. Permanent residents and persons with dual citizenship have faced great threats, as procedures to declare an individual a prohibited person have been abused to deport human rights defenders (HRDs) in the past and deny entry of non-Zimbabwean HRDs into the country.

Chapter 4: Declaration of Rights

Section 74 - Freedom from arbitrary eviction

Housing and Buildings Act [Chapter 22:07]

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Arbitrary evictions, and the associated loss of life and damage to persons and property, are increasingly common phenomena and pose great challenges in Zimbabwe. Lack of clear housing and land allocation policies have increasingly exposed poor Zimbabweans to such arbitrary action and political patronage.

It must be clear in all enactments that only a competent court can order the eviction or demolition of a property having considered all relevant circumstances. Evictees also have a right to shelter, and should be provided with adequate alternative housing in the event of homelessness caused by such orders.

Housing Standards Control Act [Chapter 29:08]

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The comments made immediately above apply here.

Urban Councils Act

[Chapter 29:15]

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Councils in the past have failed to effectively carry out their mandate because the minister has power to veto any decisions they make, and he has consistently utilised his powers to overturn decisions made by councillors. Several members of councils have also been dismissed arbitrarily and on party lines at the whim of the minister. These powers have to be curtailed so as to ensure an effective running of councils, devolution of power and security of tenure for mayors and councillors. Only in this way can issues around allocation of land and housing be addressed in a systematic and non-partisan manner.

Rural District Councils Act

[Chapter 29:13]

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Comment immediately above applies herein.

Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]

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There is no clear law or policy on how to deal with former farm workers who continue to be prosecuted for occupying gazetted land, in spite of the fact that they have not been relocated. This needs to be addressed to ensure that arbitrary evictions of such communities cease unless and until they have been properly relocated after consultations, and compensated.

Chapter 4: Declaration of Rights

Section 75 -– Right to education

Education Act [Chapter 25:04]

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  • · Incorporate right to basic state-funded education and not just provide for a child’s loosely defined ‘fundamental right to school education’.
  • · Include provision that all citizens and permanent residents have a right to a basic state-funded education, including adult basic education;
  • · Clearly define ‘basic education’.
  • · Clearly set out the framework for progressive realisation of ‘further education’.
  • · Inclusion of a requirement for government  to take positive measures with regard to promoting free education for children, promoting higher and tertiary education for all, and ensuring that girl
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Free basic education has never been pronounced in our laws or policies post 1980, despite Zimbabwe’s ratification of important international and regional instruments recognising their obligations in this regard.

One of the major challenges facing scholars is where authorities deny them entry into their classes where fees have not been paid. Others have been expelled or denied entry on account of their hairstyles influenced by their religious beliefs, and others for refusal to observe religious classes other than their own.

There have also been challenges where groups are compelled to learn either Ndebele or Shona as a local language at school when they do not speak either of the languages. The recognition by the Constitution of several other languages entitles minority groups to be taught in, and learn, their own languages at school and not be compelled and confined to English, Shona or Ndebele. Currently minority languages may be taught, but only at the Minister’s discretion.

Chapter 4: Declaration of Rights

Section 76 -– Right to health care

Public Health Act [Chapter 15:09]

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The Public Health Act was drafted in 1924 and it is totally out of touch with modern health standards. Issues of public health have been a major concern and stumbling-block to development, addressing poverty and uplifting the social and economic realities of a majority of the Zimbabwean population.  Other than being outdated, the provisions violate the rights protected by the Constitution and need to be reviewed in order for the right to health care and to an environment that is not harmful to health, as provided in the Constitution, to be progressivly realised..

Chapter 4: Declaration of Rights

Section 77 – Right to food and water

Water Act [Chapter 20:24]

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  • · Inclusion of obligation on government tot

The Water Act should be augmented to reflect the right to potable water. Currently, it deals with administration of water and not the right of access to water. Lately, there have also been many challenges to the push towards installation and use of pre-paid waters meters, thus commodifying access to water. As a fundamental human right essential to the right to life, it is critical for such moves to be opposed and free access to water to be protected also in subsidiary legislation, now that it is enshrined in the Constitution’s declaration of rights.

Zimbabwe National Water Authority Act [Chapter  20:25]

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Zimbabwe continues to have challenges in providing safe, potable water that is freely accessible to the people. There is a need to ensure that the authority mandated to oversee the management of water resources is effective and accountable for progressive realisation of the right to water. Again, the ability of people to freely access water without commodification through pre-paid water meters is an issue which needs to be addressed and ensured.

Chapter 4: Declaration of Rights

Section 80 -  Rights of women

Section 81 -  Rights of Children

Guardianship of Minors Act [Chapter 5:08]

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Women continue to be subjected to unequal treatment as a result of the guardianship of legitimate children automatically vesting solely in the father. They have not been able to make decisions or take certain actions on behalf of their children without the authority and consent of the fathers, in such issues as obtaining a birth certificate and passport for their children. Children are the responsibility of both parents; as such the Act needs to strongly reflect that men and women are equal in terms of guardianship of their minor children.

Children’s Act [Chapter 5:06]

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The rights of children continue to be violated, even by institutions that are supposed to protect them. Courts, for example, have given custodial sentences in matters where juveniles are involved, contrary to the best interests of the child. Such conduct needs to be clearly outlawed in the Act. The Constitution expands the rights of children as a vulnerable group and the subsidiary legislation needs to reflect these expanded protections.

Customary Law and Local Court Act

[Chapter 7:05]

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The Constitution now outlaws child marriages and the right to marry is reserved for persons who are at least 18 years of age. However, child marriages remain a major concern and continuing phenomenon in Zimbabwe, with the majority of such marriages occurring in areas under the jurisdiction of traditional chiefs.

Marriages Act

[Chapter 5:11]

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The Act currently allows for minors to be married with the consent of the guardians. This affects the welfare of the child and is detrimental to the growth, wellbeing and welfare of the child. It is also a violation of the provisions of the new Constitution.

Births and Deaths Registration Act [Chapter 5:02]

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A significant number of children (and adults) do not have birth certificates because the laws to acquire the same include excessively stringent requirements making it impossible to easily obtain them. This then has knock-on effects in terms of registration of children for health care and for education, obtaining travel documents, amongst other issues.

The law also ought to be amended to ensure that children (in particular foundlings) do not become stateless.

Refugees Act

[Chapter 4:03]

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Refugees – and particularly children refugees - are vulnerable to many forms of abuse and rights violations. The government must take measures to protect the rights of refugee children in accordance with the constitutional rights of the child.

Chapter 4: Declaration of Rights

Section 83 -  Rights of persons with disabilities

Disabled Persons Act [Chapter 17:01]

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Facilities and resources for disabled persons have generally been very limited in Zimbabwe, restricting their participation in public affairs and economic, political and social life. Strengthened legal provisions may assist to improve the level of participation and subsequently the quality of the lives of this community, which has now received specific protection under the new Constitution.

Section 68 – Right to administrative justice

Administrative Justice Act [Chapter 8:17]

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Administrative authorities continue to violate the Constitution by refusing to comply with the rules and tenets of natural and administrative justice, particularly in decisions that are taken in state institutions and by and against state (and non-state) actors. While such action can be legally challenged after the fact, it is critical to prevent such abuse in the first place. Where legal action is taken, decisions (and the reasons for such decisions) must be furnished expeditiously.

Section 85 – Enforcement of fundamental human rights and freedoms

Class Action Act [Chapter 8:17]

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Class actions have been notoriously difficult to institute and pursue in Zimbabwe. This is primarily due to the prohibitive administrative barriers and complex and costly procedures imposed by the law and the courts. Such onerous requirements have made it impossible for those with limited resources to proceed with such action.

State Liabilities Act [Chapter 8:14]

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Good practice in the region and internationally has seen an improvement in enforcement of rights against errant state institutions and actors. Now that a protective provision has been included in the new Constitution, the legislation must be overhauled to enforce this protection. This will also help to counter impunity for violations committed particularly by state actors in the course of their official duties. There are currently also undue time-restrictions on suing state officials and agencies and a prohibition on attaching state property to settle debts and damages orders against state entities. These need to be removed and overhauled.

Prescription Act [Chapter 8:11]

 

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Currently the prescription periods for claims against the state are very short and have negatively affected the ability of victims of state-sanctioned violations to claim against such actors and institutions. The Constitution has addressed this, and the Act must now be aligned to ensure this is respected.

 

 

Strengthening the efficiency and effectiveness of state institutions (justice) in delivering on their mandate and accounting to the public

Chapter 8:

The Court System

 

Supreme Court Act

[Chapter 7:13]

 

High Court Act,

[Chapter 7:06]

 

Magistrates’ Court Act

[Chapter  7:10]

 

 

 

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  • · Introduction of a Constitutional Court Act with provisions for access to this court and provisions for its mandate and procedures (to be read together with Rules of the Constitutional Court).
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The unavailability of court rules for the Constitutional Court continues to cause uncertainty in terms of procedure, thereby limiting access to the court and reinforcing uncertainty of a standard procedure implemented equally for all litigants.

 

Appointment of Judicial Officers

Judicial Service Act [Chapter 7:18]

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The process for appointing judges has been marred with controversy in the past. The Constitution has created a more transparent procedure which should now be fully reflected and enhanced in an Act of Parliament.

Chapter 5:

The Executive

Presidential Powers (Temporary Measures) Act

[Chapter 10:20]

 

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This Act violates the principle of separation of powers which is clearly emphasised in the Constitution by allowing the President to make, amend and go around laws without the oversight and approval of the legislature. This has been a particular problem in relation to election legislation and processes. Laws should be made by the legislature – parliament - and not the executive. Legislative powers cannot be delegated to the executive.

 

Chapter 12: Independent Commissions Supporting Democracy 

Zimbabwe Human Rights Commission Act

[Chapter 10:30]

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The current Act does not fully comply with the Paris Principles on Establishment of National Human Rights Institutions. It has to be reviewed to consolidate the Commission to be independent and more effective in fulfilling its mandate. In addition, the Commission has been provided with more powers under its mandate in the new Constitution, and this has to be reflected in updated legislation.

 

National Peace and Reconciliation Commission Act [New legislation to be enacted]

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Zimbabwe has a history of conflict and serious human rights violations. A commission dealing specifically with the redress of victims of such violations, peace and reconciliation is of paramount importance. Two years have already passed in its time-bound mandate with the Commission not having been established. This cannot be allowed to continue and thoughts will also have to be centred on how to regain the 2 lost years.

 

Zimbabwe Gender Commission Act [New legislation to be enacted]

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As with the National Peace and Reconciliation Commission, this constitutional commission is yet to be established, although it was created two years ago in the new Constitution.

Anti-Corruption Commission Act [Chapter 9:22]

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The independence of the Anti Corruption Commission must be secured for it to be effective in the fight against corruption. There is need to reflect on the challenges this commission has faced in the recent past and address them in any proposed amendments to the current Act. As with other commissions, the process of accounting to the public needs to be strengthened so that there is no reliance on the goodwill of the minister responsible for administering the Act to bring reports to parliament.

Prevention of Corruption Act [Chapter 9:16 ]

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Corruption continues to undermine the administration of justice in Zimbabwe. The anti-corruption laws must be reviewed to address this. Presently, corruption cannot be effectively fought, as most of the crimes of corruption are not well developed and there is no effective unit to investigate and prosecute such crimes.

Chapter 11: Security Services

Service Commissions (Defence Forces, Intelligence, Police and Prisons) [New legislation to be enacted]

 

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The Constitution establishes the Prisons and Correctional Services Commission, the Police Service Commission, the Defence Forces Services Commission and includes new provisions to make the intelligence services more transparent and accountable.

 

Prisons Act

[Chapter 7:11]

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The conditions of detention in prisons continue to violate national, regional and international human rights norms and standards. They must be reviewed. Prisoners and inmates do not lose their other rights such as dignity and equality when they are incarcerated; they only lose the right to freedom of movement and liberty.

 

Section 219-223 – Police Service

Police Act [Chapter 10:11]

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There have been many documented cases over the years of the police in Zimbabwe using torture to investigate and extract confessions from suspects. They have used unacceptable force (at times, deadly force) against suspects and also against human rights defenders and legitimate political activists. The new Constitution seeks to address these issues and others, such as selective application of the law and refusal to investigate certain cases. This not only fuels impunity, but damages the credibility and effectiveness of what should be a national police service. These issues have to be addressed by actions, but also by clear legislative framework and provisions which are enforceable when violated. Also of concern is the continued involvement of some police officials in the activities of political parties, with some standing as candidates in past elections, even while maintaining their positions within the Zimbabwe Republic Police. Disciplinary measures for rights violations committed by police need to be tightened, and the Police Service Commission must be reformed for it to properly oversee the activities of the police, their training and accountability issues.

Section 211 – Defence Forces

Defence Act [Chapter 11:02]

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The role of the army must be clearly spelt out in the law to prevent abuse of power by the army and ensure that they will always be subordinate to civilian authority, as required by the Constitution and in any democratic state. In the past, concerns have been raised that army personnel have been partisan and politicised. This has to be addressed for public confidence in this institution to be regained. There is also need to address the concern of deployment of army personnel in key civilian institutions such as the National Prosecuting Authority, the police, and various parastatals. This is unacceptable except in a situation of a national emergency, and is a continuing violation of the Constitution, which specifically prohibits this.

 

Increasing rights literacy and public participation in Zimbabwe’s governance issues

Section 62 -Access to Information

Access to Information and Protection of Privacy Act

[Chapter 10:27]

 

 

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At present, the Act contains provisions relating to media and free speech regulation, and access to information from state and other public bodies. The new Constitution has opened up access to information and developed the framework for people to access a wide and diverse range of information to assist them to actively participate in civic affairs. Provisions in the Constitution also provide for increased transparency relating to information from state institutions. The current Act is completely out of line with this. It would be best to come up with a more constitutionally compliant piece of legislation to replace AIPPA and deal specifically with access to information issues.

 

In relation to freedom of expression and freedom of the media, the new Constitution also broadens such freedoms. A media freedom protection has been specifically included in the Constitution yet the reality on the ground is at odds with this, due to the continued insistence on registration of media houses and media practitioners and excessive restrictions on what they are able to cover. Freedom after expression also remains elusive, with self-censorship still pervasive due to the fear of being prosecuted for expressing critical views of individuals, institutions and state policies and practices. There is need for removal of the provisions which allow such restrictions to continue.

 

Broadcasting Services Act [Chapter 12:06]

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Freedom of expression is central to an open and democratic state in which people access diverse information to help them participate and make choices about governance, social and economic issues. Zimbabwe continues to have only one television channel, which broadcasts highly partisan and sub-standard content, while the radio stations also continue to be controlled by the state/ruling party (even the current 2 private commercial channels). There are still no community radio stations broadcasting from Zimbabwe, while short-wave radio stations are often subjected to signal-jamming and have been unlawfully “criminalised” by the state. Until such time as the airwaves are liberalised, people in Zimbabwe will continue to receive partisan information and much content will be censored or simply placed outside their reach. In a country where radio is the best way to communicate with the public, especially where other media products and telecommunications are still very expensive and out of the reach of the majority, the need for liberalisation cannot be over-emphasised. There is also need to ensure that the authorities overseeing regulation are broadly representative of the sector and various stakeholders of the media and broader society.

 

 

Censorship and Entertainments Control Act

[Chapter 10:04]

 

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The Censorship Board has and continues to restrict content available to the public by way of film, written and spoken word. This greatly undermines the right to access information. The decisions are made without following natural justice and administrative law rules, and are very difficult to reverse. The Board must be properly constituted and its appointment procedure, processes and decisions must be clear and transparent.

 

Criminal Law (Codification and Reform) Act

[Chapter 9:23]

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This Act has been used consistently over the past decade to effectively criminalise any public dissent and criticism of the president and other state institutions and actors. Prosecutions have not been successful, and the Constitutional Court has ruled that the provisions used contravene the constitutional freedom of a person to express themselves. However arrests and prosecutions continue and have also had a chilling effect on the ability of people to discuss political and civic affairs openly due to the risk of action being taken against them by the state. This needs to be addressed. The public must freely be able to criticise public figures without being fearful of criminal action being taken against them.

Courts and Adjudicating Authorities (Publicity and Restrictions) Act

[Chapter 7:04]

 

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There is a right to access information by the public, and court proceedings must usually be held in public. It must be clear what information can be restricted in court proceedings and on what basis. Recently some civil cases involving politicians have been held in camera in unclear circumstances. This has been seen as a way to prevent disclosure and investigation of potentially fraudulent and corrupt activities and acquisitions.

Official Secrets Act

[Chapter 11:09]

 

  • · Provisions must be well defined on what document or article will be
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These provisions can be abused to restrict access to crucial information that citizens need from government officials for accountability purposes and to encourage increased public participation and discussion.

Also this Act has been used on several occasions by the executive to stop scrutiny of state action by the courts. There is no stipulated procedure for the circumstances in which this can be done, and how it is to be tested by an independent authority and therefore can be subject to abuse by authorities not wishing to have their unlawful actions scrutinised.

 

Privileges, Immunities of Parliament Act [Chapter 2:08]

  • · Review of any proposed amendments to the Act to ensure that members of parliament continue to have an absolute right to freedom of expression during debates or when they attend other parliamentary proceedings and committee hearings (save for instances of hate speech and inciting violence).
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The Constitution provides for greater freedom of speech in parliament; however proposed amendments included in the recently gazetted General Laws Amendment Bill seek to allow parliament to impose harsher fines and penalties, imprisonment in the event of non-payment of fines, and “administrative imprisonment” for contempt. Also, although parliament cannot now impose criminal penalties or imprisonment as a result of the constitution’s improved provisions, the proposed amendments seek to circumvent this by providing for referral to the Prosecutor General to do so.

 

Chapter 7: Elections

Participation in governance and public affairs

Electoral Act [Chapter 2:13]

 

 

 

 

 

 

 

 

 

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The Electoral Act has been amended once since the new Constitution came into effect in 2013. However this was done without the input of the Zimbabwe Electoral Commission (ZEC) and after ignoring other stakeholder concerns, in contravention of the supreme charter. There are a number of issues which are yet to be addressed in the Electoral Act. These include the process of voter registration, voter education, compilation of and access to the voters’ roll, the Diaspora vote, how voting is to be done by law enforcement and security service personnel, and the controversial role of the Registrar General in electoral processes (which has been rejected in the new Constitution).

ZLHR will be releasing a more comrehensive analysis and position paper on electoral reforms in due course to supplement the basic issues raised here.

 

Protection of Human Rights Defenders

 

 

 

 

Section 69 Right to a fair hearing

Criminal Procedure and Evidence Act

[Chapter 9:07]

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The Constitution has significantly expanded the rights of the accused person, from the time of arrest, through trial, to appeal procedures. The Act is not in line with these expanded rights and this needs to be remedied urgently, as trials are continuing without the benefit of standardised procedures. This could raise challenges in relation to the conducting of such trials on appeal.

Chapter 4: Declaration of Rights

Section 49 – Right to personal liberty

Section 50 - Rights of arrested & detained persons

 

Criminal Procedure and Evidence Act [Chapter 9:07]

 

 

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Human rights defenders have borne the brunt of violations to their fundamental rights when under arrest and detention. These include arbitrary arrest and detention before investigations are complete, or where police are seeking evidence unlawfully; torture and other inhuman and degrading treatment in police and prison custody; unlawful entry into their premises and unlawful search and seizure of property and documentation; and denial of access to lawyers and doctors. The Constitution has significantly broadened the rights of an accused person and the provisions must be manifested in the legislation dealing with such situations to ensure their safety and rights compliance by state actors who now have very clearly articulated constitutional obligations.

 

Missing Persons Act [Chapter 5:14]

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Incidents of missing people continue to occur and at times the victims are human rights defenders. The law has to be reviewed to incorporate provisions of the Constitution, as well as internationally proscribed crimes such as enforced disappearances.

Inquests Act [Chapter 7:07] and Anatomical Donations and Post-Mortem Examinations Act [Chapter 15:01]

 

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Recently the disturbing phenomenon of deaths of detainees in police custody has re-emerged. There are many challenges in investigating such cases, including involvement of the victim’s family and their legal representatives in the post-mortem and inquest proceedings, the role of the medical authorities in facilitating this process, and the ability of the family to seek and obtain an independent post-mortem in a timely manner.

 

 

Chapter 4: Declaration of Rights

Section 53 - Freedom from torture or cruel, inhuman and degrading treatment or punishment

Anti- Torture Act [New legislation to be enacted]

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Prior to the adoption of the legislation, there are several steps that can be introduced to prevent and combat torture. The Zimbabwe Republic Police can adopt an anti-torture policy. The police must also establish an Independent Police Investigations Department with the express mandate of investigating all allegations of torture by the police. In the past in extreme cases there have been deaths in police custody and most of the cases against police have not been investigated.

The new Act must further acknowledge the seriousness of acts of torture, which is internationally proscribed. The effectiveness of the implementation of the proposed Act depends on the police, the courts and other actors.

Section 57 - Right to Privacy

Criminal Procedure And Evidence Act [Chapter 9:07]

 

 

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It is important to note that the right to privacy has to be balanced against the right of the media to freedom of expression and the right of the public to access information on issues of public interest. It is also important to outline mechanisms of how to balance the need to expose corruption or misdeeds of public officials without unwarranted violation of their right to privacy.

Interception of Communications Act [Chapter 26:20]

 

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The law on interception remains murky, and has been abused to invade the privacy of innocent human rights defenders and other people in Zimbabwe. There is need for the law to comply with regional and international norms and standards on privacy; in particular the practice of allowing law enforcement or other state agents to intercept communications without advising individuals that they are doing so must be stopped. In all cases, where information is required, the targeted individual or organisation must be advised and have a chance to challenge the practice in the courts before such interception and collection of information is effected by the authorities.

Chapter 4: Declaration of Rights

Section 58 – Freedom of Assembly and Association

Private Voluntary Organisations Act [Chapter 17:05]

 

 

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For over a decade, organisations operating as trusts have been targeted for inclusion under this legislation. Most human rights organisations operate as such, and the perception has been created that the authorities wish to prevent, reduce, or make ineffective the work of such organisations. The Act allows excessive scrutiny on the individuals involved in organisations, financial information, and strategic interventions. Coupled with an ineffective PVO board, whose activities and decisions are not transparent, and whose processes are so slow that they affect the ability of applying organisations to operate pending the processing of their applications, the private voluntary and welfare sector remains in a state of confusion and ineffectiveness. This requirement is backed up by criminal sanctions. Considering the laborious registration procedure and severe delays, this requirement certainly hinders the right to enter into association with others and work for a common cause.

ZLHR’s position, however, in line with research and positions taken by the UN Special Rapporteur on Freedom of Peaceful Assembly and Freedom of Association, is that registration should not be required and, where registration is preferred by an organisation, the requirements must not be so strict that it has an impact on the mentioned freedoms. However, self-regulation is to be preferred to statutory regulation.

 

 

Public Order and Security Act [Chapter 11:17]

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The misinterpretation of this Act, together with its abuse by authorities and selective application against human rights defenders and legitimate political activists has been extensively documented since the Act became operational more than a decade ago. Its use and some of its provisions have severely restricted the freedom of people in Zimbabwe to assemble and associate, and have had a further deleterious knock-on effect on other rights such as expression, movement and protection of the law.

The new Constitution in section 58 has broadened the freedoms of assembly and association and now allows gatherings, in particular, to occur at any time without interference from law enforcement agents so long as they are peaceful. Further constitutional provisions have sought to broaden such rights by ensuring that there is advance judicial oversight of all decisions relating to gatherings. Regrettably, the law enforcement agents continue to ignore these constitutional protections and misapply the law. Such actions need to be addressed urgently.

 

Section 59 -Freedom to Demonstrate and Petition

Public Order and Security Act [Chapter 11:17]

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  • · Review of overly broad provisions, subject to abuse, on criminalisation for breach of the peace and excessive powers for the enforcement of public order or security to strike a balance between rights of protestors and “rights of others”.
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POSA has in most instances been abused by the police on partisan lines. Amendments to the Act should make it difficult for the police to abuse the provisions of the Act, or to have a final say outside a court order.


 

 

 
© Copyright ZLHR 2013