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NATIONAL ASSEMBLY HANSARD 01 SEPTEMBER 2020 VOL 46 NO 59
PARLIAMENT OF ZIMBABWE
Tuesday, 1st September, 2020
The National Assembly met at a Quarter-past Two o’clock p.m.
(THE HON. SPEAKER in the Chair)
THE HON. SPEAKER: Order, there is COVID testing exercise going on. There are quite a number of the Hon. Members who have presented themselves for testing. We want to complete the exercise today. So those who have not been tested, the doctors are ready outside, you may proceed and get tested. It does not take five minutes and you can come back thereafter.
HON. TOFFA: I want to seek clarity with regards to the Vice President’s announcement. How many reports is he giving us? Is he giving us the 2018 and the 2019?
THE HON. SPEAKER: That is correct. Part of this will be distributed into your pigeon holes and a soft copy to your e-mail so that you will read them accordingly and be ready to debate on Thursday. Thank you.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS: I move that Orders of the Day, Numbers One to Four on today’s Order Paper be suspended until Order of the Day Number Five has been disposed of.
Motion put and agreed to.
ATTORNEY GENERAL’S OFFICE AMENDMENT BILL [H. B. 14, 2019]
Fifth Order read: Adjourn debate on the Second Reading of the Attorney General’s Office Amendment Bill [H. B. 14, 2019].
Question again proposed.
HON. MATARANYIKA: Thank you Mr. Speaker for giving me the opportunity to present the Report on the public consultations on the Attorney. General’s Office Amendment Bill by the Portfolio Committee on Justice, Legal and Parliamentary Affairs.
Before the enactment of the Attorney General’s Act in 2011, the Attorney General was responsible for both civil and criminal mandates with the Directors of Drafting, Prosecution, Legal Advice and Civil Division and the Attorney General’s Office was Principal Adviser to Government and at the same time rendering prosecution service on behalf of the State. The Adoption of the new Constitution in 2018 created the National Prosecuting Authority to handle prosecution. The AGs role solely became that of Principal Legal Adviser to Government. Of the four directorates that existed, the AG retained the three directorates of Civil Division, Legal Advice and Drafting while Prosecution was moved to the National Prosecuting Authority.
In terms of Section 114 of the Constitution, the Attorney General is appointed by the President as the Government Principal Adviser with additional responsibility for representing the Government, non criminal legal proceedings and drafting the Government’s legislation. Under Section 115 of the Constitution, the AG can be removed at any time by the President. The Attorney-General’s Office Amendment Bill was gazetted on the 21st February 2020 and its main purpose is to amend the Attorney-General’s Office Act, to provide for the appointment of the deputies to the Attorney-General (A-G). The amendment seeks to enhance the effectiveness and efficiency of the A-G’s Office.
In fulfillment of Section 141 of the Constitution, the Portfolio Committee on Justice, Legal and Parliamentary Affairs conducted public hearings in Harare, Mutare, Gweru and Bulawayo on the 13th and 14th of July 2020.
This clause provides for the short title of the Bill. No comments were raised on the clause.
This clause repeals the preamble in the Attorney General’s Office Act to align it with the Constitution by restating provisions of Section 114 of the Constitution. The clause replaces the preamble to the Act with an extract from the present Constitution, replacing the existing extract from the former Constitution. The clause further acknowledges that constituting the Attorney- General’s Office as a separate entity will enhance its independence, effectiveness and efficiency. Members of the public welcomed the provision for the Attorney General’s Office to be outside the civil service. They further emphasized that there is need to adequately resource the Office and for it to be responsible for its own conditions of service.
This clause amends section 2 of the Act by defining “law officer.” Officers that served under the A-G before enactment of the 2013 Constitution were generally referred to as law officers. In addition, some government departments and ministries have lawyers under their purview. The clause provides that the A-G will assume authority over law officers in departments and ministries, other than those specifically excluded by the definition.
Members of the public were of the view that the Bill should clarify the relationship between the Attorney General’s Office and the Ministry of Justice, Legal and Parliamentary Affairs. It was proposed that the relationship should not compromise the A-G’s Office independence.
This clause inserts a new section into the principal Act on the appointment of Deputy Attorneys-General by the President, after consultation with the Judicial Service Commission (JSC). The clause also empowers the Deputy A-G to act in the absence or incapacity of the A- G, and guarantees his/her tenure of office. They are not civil servants, and the Government cannot reduce their salaries and allowances during their tenure of office. No comments were raised on this clause
Clauses 5 and 6:
These are consequential changes arising from the adoption of the 2013 Constitution. They align the provisions amended to section 114 of the 2013 Constitution. Clause 6 amends section 4 of the principal Act to make the Attorney-General the chairperson of the Attorney-General’s Office Board, replacing the existing provision for the chairperson to be a former judge or senior lawyer from outside the Office. Deputy Attorneys-General will not be members of the board. No comments were raised on the clause.
This clause inserts a new section into the Act, which provides that ministries or Government departments cannot employ lawyers to render any legal services relating to the functions of the Attorney-General’s office without the approval of the Attorney- General. The clause restates that the A-G is the principal legal advisor to Government. No comments were raised on the clause.
This clause inserts a new provision into the Act which states that the Attorney-General’s opinion or advice on a question of law is binding and definitive on all executive arms and branches of the State, unless overturned by a court of law. The provision seeks to ensure that the AG’s Office will be the key player on legal matters for Government. Participants expressed concern with the clause as it proposes that the advice of the A- G’s office is binding on ministries and Government departments. They expressed the view that advice, by its nature, can be taken or rejected, therefore compelling Ministries to take this advice.
Clause 9: This is a transitional clause in ensuring a smooth takeover of the centralised legal advice role by the AG for Government. Some Ministries and departments have legal officers under their wings and the provisions intend to synchronise their work to that of the AG’s office. Members of the public were of the view that the clause is not clear as it provides that every law officer, that is a civil servant employed within the Ministry to do legal work is deemed to be seconded to that Ministry until reassigned by the Attorney-General.
Participants hailed the view that the Attorney General cannot re-assign civil servants, that is the function of the Civil Service Commission.
Committee Observations and Recommendations
The Bill will go some way at least towards amending the Attorney-General’s office Act’s Constitution. The Committee appreciates the role of the Attorney-General’s office Bill in assisting the Attorney-General to discharge his onerous constitutional duty. Among the most important is to promote, protect and uphold the rule of law and to defend the public interests. Section 114, subsection 4, paragraph b of the Constitution, there is need therefore to formalise the appointment of additional Deputy Attorney-General by an Act of Parliament. The Committee welcomes the intention to bring all legal officers employed in the civil service under the single roof of the Attorney-General’s office to the Attorney-General as their head.
Presently, public legal officers are appointed on a piecemeal basis to the Attorney-General’s office and to the several Ministries of the Government. The formalisation of every legal public officer to be answerable to the Attorney- General is commendable. The Committee commended the Bill for finally putting in black and white what has been recognised and practiced before, namely that the opinions of the Attorney-General on a question of law are binding on the Executive unless overturned by a court of law.
It is the Committee’s recommendation that the opinions of individual legal officers in the Government must be in conformity with that of the Attorney-General on the same matter, since the Attorney-General is the principal legal officer of the Government. All legal officers in the line Ministry should fall under the Attorney-General.
The Bill is a welcome development as it raises another important milestone in the ongoing process of the alignment of our laws to the Constitution. The Attorney-General’s office should be separated from the Civil Service in interest of the appearance and reality of impartiality in the discharge of all legal services to Government departments and the need to referring and hire staff of a calibre adequate to the discharge of the functions. I thank you very much Mr. Speaker Sir.
HON. NDUNA: Thank you Mr. Speaker Sir. In supporting the report of our Committee headed by Hon. Mataranyika, I just want to add a few comments on the Bill, which comments are of a general nature. This Bill seeks to repeal a law that was passed nine years ago, during which time one Attorney-General, who was Johannes Tomana sought to raise an objection on why he could not have a board at that time; a board that fell under him. This law has not come into force and even after coming into force, it has not been utilised Mr. Speaker Sir. However, it is permissible to repeal a law that has not been utilised and I am going to comment as follows:
Mr. Speaker Sir, the Bill itself needs to be checked in terms of typos and the incorrect punctuations, omissions and capital letters, in particular on the following sections; Section 4 (2), which states that the minimum number of women on the Attorney-General’s office board must be at least three or four. Mr. Speaker Sir, there is need that the Minister of Justice, Legal and Parliamentary Affairs, as he responds, needs to clarify why those numbers.
Mr. Speaker Sir, also in reference to the Comptroller and Auditor-General in Section 21, it needs to be updated. The title now is Auditor-General.
Mr. Speaker Sir, the date 31st December, 2011 in Section 26 (6) needs to be corrected. These are just typo errors which cannot actually impede on the publication and assenting to the Bill by His Excellency Mr. Speaker Sir, because they keep referring to that Bill that came into force in 2011.
Mr. Speaker Sir, more importantly for the Attorney-General himself, the provision should be inserted stating that his salaries and allowances cannot be reduced as has been alluded to by the Chairperson, while the Bill contains such provisions for the Deputy Attorney-General but nothing is said about the Attorney-General in relation to the salaries.
Mr. Speaker Sir, as I conclude, there is in Clause 8, I want to appeal to the Minister because this Bill may encourage those suing Government to add a new ground for their complaints that the Minister or other officials being sued went against the Attorney-General’s legal opinion and are in contravention of the Act of Parliament. Although such opinions are meant to be confidential, it is the view out there Mr. Speaker Sir, that sometimes confidentiality is not held for long.
The second issue will lead to the anomaly that if a Permanent Secretary declines to follow an incorrect opinion given to him by the Attorney-General’s office, he/she will be breaking the law, that is, the new Section 22 (a) whilst at the same time complying with the law as it really is Mr. Speaker Sir.
The last issue Mr. Speaker Sir, which I think we can find addressing can actually seek and find a haven in the heart of the Minister and may give rise to pointless disputes within Government over whether an opinion was on a question of law or a question of fact or a question of mixed law and fact. Mr. Speaker Sir, it is recommended because of the aforesaid, the Minister has come with legal opinion from his office. Mr. Speaker Sir, I want to thank you for giving me this opportunity to effectively, vociferously and efficiently add my voice to this Bill.
HON. PHULU: Thank you Mr. Speaker Sir. I just want to add my voice and actually applaud the report by the Chairperson of the Portfolio Committee on Justice, Legal and Parliamentary Affairs. I am a Member of the Committee and I would like to applaud the Minister for bringing this Bill forward and for actually bringing the amendments. It is a very short Bill and the Minister was very concise and targeted certain amendments which were necessary. One can tell that the Minister’s thrust was to bring the Attorney-General’s office Act in line with the current Constitution. So, I would like to applaud that kind of approach because a lot of our legislation still remains to be aligned with the Constitution.
I am not going to comment on the Bill clause by clause, I will wait for the Committee of the whole House for us to deal with each and every section. I want to pick on the proposed Clause 8 which brings in a proposed new section 22A, which talks about the binding nature of the Attorney-General’s opinion and I think my colleague, Hon. Nduna also spoke to this one.
The Hon. Minister would like to ensure that the Attorney-General’s Office becomes effective and when his office renders advice to any Minister, any Permanent Secretary or to any Government department, there must be evidence that that advice is being taken seriously and being followed which is not a culture which we have. One can say that we have it because we have not had clauses that make that mandatory.
However, in so doing, I would like the Hon. Minister to give any department, any Minister or anyone for that matter, who has a contrary opinion to be able to depart from the opinion of the Attorney-General if he thinks the opinion is wrong. I think the manner in which this clause is drafted puts whoever is being advised in a straight jacket such that the advice is strictly a ruling and the Minister has to go to court to have it overturned or has to persuade the Attorney-General himself to say but your juniors have given me this advice. The procedure is too cumbersome especially if you read it with clause 7, which says “if any head of a Government office, whoever it may be, is not able to approach independent counsel for a second opinion unless he goes through the Attorney-General’s office”. So, the Attorney-General’s office will not approve that separate opinion if he strongly believes his opinion is perfect.
I think the Minister, the Permanent Secretary or whoever is being advised should surely be allowed the option of seeking a second opinion from independent counsel without approval from the Attorney-General’s Office in that particular incidence. I think that will add some vitality and space to interrogate opinions within our Government. I am not saying this because I am not creating positions for counsels but certainly anywhere you go, surely a Government office should be able to brief counsel for an independent opinion discussed with the Attorney-General so that there can be a ground even to persuade the Attorney-General to say there is another opinion that could be heard. I thank you
HON. P.D. SIBANDA: Thank you Hon. Speaker for affording me this opportunity to add my voice to this amendment. Firstly, I want to thank the Hon. Minister and the Committee for this Bill. What I thank the Hon. Minister for is realising that there is inefficiency and ineffectiveness in the office of the Attorney-General and that inefficiency and ineffectiveness has to be attended to.
Hon. Speaker, inefficiency and ineffectiveness in my view, in the office of the Attorney-General, is more apparent in the departments of drafting and also in terms of how at times legal advice comes slow and shady to Government in certain instances. It is therefore appreciated that the Executive has decided to ensure that ineffectiveness and inefficiency is cured.
However, it is my submission that inefficiency and ineffectiveness in the office of the Attorney-General cannot be cured by appointment of extra Deputy Attorney-Generals. The reason why I submit so is because the job of a Deputy Attorney-General just like that of the Attorney-General, is more administrative rather than operational. It is my view that in these days, when there is an encouragement for Government to reduce its expenditure especially employment, one would have expected that instead of increasing the administrative burden and administrative positions, the Ministry should instead have gone to increase positions of operational legal officers in the officer of the Attorney-General rather than burdening the fiscus with more administrative positions that are going to gobble more money and bring less result to the areas that we want to improve efficiency in.
I also want to concur with the submission that the advice of the Attorney-General should be binding following on line Ministries. The advice of the Attorney-General is not a general advice; it is a specialist and professional advice. Most of the people who receive that advice are not trained in the legal purview and therefore it is important that when an Attorney-General gives that advise, the line Ministry should take it as it is and apply it as it is. That - in my view, Hon. Speaker, will also assist in terms of accountability and diligence of the Attorney General in the discharge of their responsibilities.
I just want to give you an example Hon. Speaker. If an Attorney General is going to give advice, let us say out of 10 advices that they give to the Government, nine are found to have been wrong or inappropriate, that improves our view of assessing the capacity or the capabilities of the person that is occupying that office. However, if line Ministries are given a leeway to reject professional advice that would have been given, it becomes a bit difficult for Government to measure the capacity of an individual occupying the office of Attorney General.
I also totally agree, Hon. Speaker that all public legal officers should fall under the office of the Attorney General so that we increase both accountability and responsibility and supervision of the work of public legal officers. That is my submission Hon. Speaker. I thank you.
HON. MADZIMURE: Thank you Mr. Speaker. I just want to raise two issues specifically. I am not a member of the Committee but I just want to raise a few issues. One issue, Mr. Speaker, regards the board. I am aware of the composition of the board but I strongly feel that for the sake of ensuring that good corporate governance is maintained, I am still of the opinion that the Chairperson of the board should be somebody else, otherwise the purpose of that board will simply be to rubberstamp the views of the Attorney General.
So to ensure that there is good performance and there is also accountability, I was of the opinion that maintaining a situation where you have a former judge chairing that board - despite the fact that the composition is mainly of the people in the Attorney General’s office, that would enhance the performance because I am also of the opinion that that board actually looks at the performance of the entire office; how it is performing, how are the cases being handled, even the advise itself.
This leads me to the issue of the advice of the Attorney General being said to be final. Mr. Speaker, it is like you may even have a Minister who is quite knowledgeable and who can contribute towards the perfection of the board and might have a better opinion, even though he or she will doubt the opinion of the Attorney General. If it is final, then you have got no choice but to just accept. So I am of the opinion that I think you still need an independent opinion and that must also be considered. Thank you Mr. Speaker.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker Sir. I want to thank the Chairperson of the Portfolio Committee of Justice for the report that they presented and I have taken note of their contributions. I want to thank the Hon. Members also who have contributed. I will try to respond to some of the issues that have been raised.
The first one Mr. Speaker Sir is that in the Bill there is a proposal to set up the office of the Attorney General and it indicates that they are public servants but are not part of the civil service. We are not saying that the Attorney General’s office is independent from the Executive. These are Government legal practitioners. It is like you are saying you go to visit your lawyer and you are saying your lawyer is independent from you. There is nothing like that. There is no need for independence of the office of the Attorney General but rather we want to ring-fence them so that there can be a better way of negotiating their package, comparing with their counterparts in the private sector. So we are not focusing on them becoming independent and being an animal that tells the Government what to do. The client is Government. So if you visit your client, you tell your client I want you to do one, two, three, four. I think on that regard it is okay.
I am not sure where reference to the board is coming from like what Hon. Phulu said. This is a very short and precise Bill. We only have about eight amendments, so do not read the whole Attorney General’s Bill and focus on things that are not in the Bill, like there was an indication on the salary of the Attorney General. It is set by the President, it is an appointee of the President, but the Constitution speaks only about the Attorney General. It does not make reference to the deputies. So what we are trying to do is to give effect to that.
The Attorney General’s Office is a huge department with several departments. We have Drafting, Legal Advice, and And Civil Division. So we want to ensure that the salaries of the Deputy Attorney Generals are ring-fenced in that regard.
I also want to thank Hon. Phulu. He was very worried about the issue of the opinion of the Attorney General being binding on all Ministries. The mischief, Mr. Speaker Sir, that we were trying to cure by this is Ministries were now employing legal advisers outside the Attorney General. The Constitution is saying the principal legal adviser of Government is the Attorney General so what would happen now is Ministries will have legal opinions that may be different from what the Attorney General is giving to the Executive and we have been losing cases because of this scenario. So we want to address one of two things to say all legal advisors report to the Attorney General. In other words they now work under the supervision of the Attorney General and whatever advice that they are giving the Ministry, the relevant officer in that Ministry must be able to go and consult the superiors to say that we have this particular problem in my Ministry and this is the advice that they are seeking and the opinion of the Attorney General must be overriding.
If we then say that Ministries must be allowed to seek for a second opinion, we will burden the fiscas for nothing. We are in agreement that these are our lawyers. You visit your lawyer, you give him a brief, you go there and the lawyer tells you that this is what you have to do, you say no, I want to seek a second opinion. Why did you go there in the first place?
Also I want to thank Hon. Sibanda. He captured it correctly. If the Attorney General is giving us wrong advice and he is the one responsible for giving us wrong advice, it will be apparent and his inefficiency will be seen rather than when we have a scenario where Ministries are forum shopping, you create a system where a Government is not coordinated. So we are looking at a scenario where all law officers report to the Attorney General who then becomes the Chief Legal Advisor.
I also do not agree that the Deputy Attorney General’s job is purely administrative. It is not. We have Mr. Dias, he sits with us in Parliament when we have Bills and that is technical they do a lot of technical work which is outside administrative work. So I believe this is a short and to the point Bill that I urge the Hon. Members to accept as it is. It is not very complicated and it seeks to address certain deficiencies that we have. Therefore in that regard, I move that the Bill be read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
ATTORNEY GENERAL’S OFFICE AMENDMENT BILL [H. B. 14, 2019]
House in Committee.
Clauses 1 to 8 put and agreed to.
On Clause 9:
HON. PHULU: Madam Chair, the issue is that it says that every Law Officer and currently we have many Law Officers in the police, Zimra and all over the place. One of the things that this Bill is curing is to remove them from the Public Service Commission so that they are under the Attorney General’s Office. They are not deemed to be assigned to the Ministries where they are or to the departments where they are. Do they remain civil servants the moment they are deemed to be assigned to that Ministry?
If indeed they remain civil servants, the Attorney General does not have the power of law to reassign civil servants. Currently speaking, the Attorney General cannot reassign teachers or anyone in the civil service because we have a Commission that deals with that. I think there is an oversight in the wording such that the day when the Attorney General says I want to reassign so and so, I have now found a function for him, someone will object and say he is a civil servant and you have no power to reassign the civil servant. Thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Chair. There are two issues here. We have Law Officers that are employed by Government solely for the purposes of giving advice and legal drafting or doing civil work for going to court and representing Government. What has been happening is that Ministries have been employing Law Officers as their legal advisers and what we are saying is that no Ministry will employ a lawyer as a legal adviser to that Ministry. The Attorney General is the one who is going to second somebody to that Ministry but we are excluding the security sector. The security sector has got its own set up and so they are not included, but all the other Government departments, they will not be able to have a legal adviser that they employ themselves or request the Public Service Commission to say can you employ for us a legal advisor.
In other words, it will not be the duty of line ministries to go to the PSC to request a legal advisor. If they request a legal advisor, it will be the duty of the PSC to say to the Attorney General, Ministry of Finance requires the services of a legal advisor and it is the Attorney General who will then assign that particular person to say go and work in that particular Ministry. I thank you.
HON. PHULU: Thank you Madam Speaker. A point of clarification - if we look at the definition in Clause 3 of a law officer, it has infact included a person retained by any Ministry and also employed or retained on contract by any security service, so actually they are included. May be at law, this service - but before you deem them seconded, there is no law which says those who are apparently employed as law officers in any Ministry are immediately deemed to be under the Attorney General’s office first, and he then immediately assigns them to the Ministry in which they are now. They are apparently civil servants as we see it. So this Bill must divert them from being civil servants and put them under the Attorney General’s office so that he can reassign them wherever they are and when he wants to shuffle them he can do it. Right now, this Bill does not say that the diversion of these civil servants is moving them to the Attorney General’s employ. Thank you.
HON. ZIYAMBI: Thank you Madam Speaker. I want to concede that I thought that this one was removed, that makes reference to the security sector. Anywhere where we speak of soldiers, they are employed as medical doctors, lawyers or you are a plumber, you go through their military training and you attain their rank. I think I will have to consult and find out why it is still there. I agree with Hon. Phulu, but regarding the civil servants, my take is, the Public Service Commission (PSC) is only an employer. It does not have the requisite technical skills to supervise anyone. I will give a good example of doctors. The PSC is not staffed with medical personnel to supervise doctors. The PSC’s duty is not to supervise engineers. You have a whole Ministry that has got professionals that will be supervising those civil servants in line ministries. What we are saying is, the principle is not who has employed but who they are reporting to. We are saying all legal advisors; all lawyers in Government, the law firm is the Attorney General. That is where you work and report. They are the ones that will assess you and make recommendations to whoever the employer is. If it is Public Service Commission, they then make recommendations.
The PSC will then be the employer for the purposes of other administrative issues outside of the professional conduct of those people. In that regard, I think there are no issues per se to say who is employing them just like teachers. The Education Officers who supervise teachers are not housed within the Public Service Commission and they make sure that those teachers do what they are expected to do. Where I think you raise an important point which I will then request us to defer the completion of our Third Reading is on the security sector personnel.
HON. MADZIMURE: Thank you Madam Speaker. I just want the Minister to, probably I got Hon. Phulu wrongly. He was saying there should be a clause or something that indicates that from now on, first those people who were already deployed in ministries as legal officers must be deemed to have gone to the Attorney General’s office so that they will be then considered to have been deployed to the ministries where they are working. This is how I got it, that it does not say what happens to the current status. It is like all are being recalled but not physically. It must be indicated that they are now all under the Attorney-General and they will then be assumed to have been deployed to their various ministries. I thank you.
HON. ZIYAMBI: Actually, Hon. Phulu read it wrongly. What I was thinking was correct. Clause 3, amendment of Section 2 interpretation of the principal Act is amended by the insertion of the following definition, “law officer means any civil servant by whatever title or rank designated, employed otherwise than in the Attorney General’s office. In other words, we have law officers that are not employed by the Attorney General’s office but employed by ministries.” This is what it is making reference to, to say that otherwise than in the Attorney General’s office or in any Ministry to give legal advice or render other legal services to that Ministry but does not include any civil servant rendering services as a law officer who is retained on contract by any Ministry in accordance with Section 10 (a) or employed in or retained on contract by any security service or Constitutional Commission. Thank you for going back to it. It is actually correct as it is, that is why I said I thought he had read it correctly. We had missed it, it is actually correct as it is. We are trying to harmonise to say all those law officers in ministries, when this Bill comes into effect they will now fall under the supervision of the Attorney General’s office. I thank you.
HON. MATARANYIKA: Thank you Madam Speaker. I want to ask the Minister whether under the new arrangement, there are going to be any ministries who are going to retain any law officers? If there are, they are being excluded here, being part of those who are under the Attorney General. So, there is need for clarity on that aspect whether all the law officers under ministries are going to be under the Attorney General or whether some ministries are going to retain other law officers who I assume are being excluded under Clause 8.
HON. ZIYAMBI: Thank you Madam Speaker. What is going to happen is; ministries will still have law officers working in their ministries but under the Attorney General’s office. Currently, we have law officers working in ministries, but they are not under the Attorney General’s office. They do not have to report to the Attorney General. They report may be to whoever is senior in that Ministry. Some ministries have got the Director for Legal Services and then law officers. So the law officers will be reporting to the Director, Legal Services in that Ministry.
What we are proposing to do is, every law officer who joins Government goes to the Attorney General’s office first and he will be trained by the Attorney General who will then identify the relevant skills and place them in the correct departments rather than having ministries hiring legal officers; it is not their duty. The principal duty of the Attorney General is to render legal advice to Government. He is the one who is supposed to identify the officers who will work to assist him to give legal advice. Indeed, we will still have law officers in Ministries but they will be reporting to the Attorney General. I thank you.
HON. MATARANYIKA: Thank you Hon. Minister. You have attempted to answer my question. The problem here from what you are saying, it means all the law officers will be under the Attorney General.
HON. ZIYAMBI: That is what we want.
HON. MATARANYIKA: So, that exclusion becomes of no relevance.
HON. ZIYAMBI: It is okay, it is transitional.
Clause 9 put and agreed to.
Bill reported without amendments.
Third Reading: With leave, forthwith.
ATTORNEY GENERAL’S OFFICE AMENDMENT BILL [H. B. 14, 2019]
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Order of the Day, Number Six on today’s Order Paper be suspended until Order of the Day Number Seven has been disposed of.
Motion put and agreed to.
NATIONAL PROSECUTING AUTHORITY BILL [H. B. 20, 2019]
Seventh Order read: Second Reading: National Prosecuting Authority Bill [H. B. 20, 2019].
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Speaker, I think there is a problem here.
THE HON. SPEAKER: Can we be clear so that we do not waste time.
HON. ZIYAMBI: My recollection is, I did my second reading speech on this Bill but for the sake of progress, since this is a very small Bill, I will just go through the memorandum to refresh our memories. I did this, I am very sure; I do not know what happened. Since it is a very short Bill with your indulgence, I can summarise.
THE HON. SPEAKER: You can go ahead Hon. Minister.
HON ZIYAMBI: The National Prosecuting Authority Amendment Bill 2019 is designed to improve the governance structure of the National Prosecuting Authority. The Bill takes into account the account status of the Authority. Currently, if you look at it, the accounting structure says the accounting officer is the Permanent Secretary and it has some conflicting provisions in that it impinges on the independence of the Prosecutor-General. Those are some of the issues that we want to deal with.
The Bill provides for the appointment of the Deputy Prosecutors-General to assist the Prosecutor-General in the discharge of his or her constitutional mandate.
Clause 1 deals with the short title of the Bill.
Clause 2 amends the definition section by introducing new terms used in the Bill. Notably, the Secretary to the Authority which is defined by reference to Section 15 (2) as the accounting officer of the authority. It gives the definition of the Deputy Prosecutor-General.
Clauses 3 and 4 deal with membership of the board and Clause 5 provides for the appointment by the board in consultation with the Minister of the Deputy Prosecutor-General who shall head the sitting prosecutorial sections and other department of the authority as well as supervise the members assigned thereto. The Deputy Prosecutors-General shall be subject to the direction of the Prosecutor-General in the discharge of their duties. Clause 5 just empowers the board to appoint the Secretary to the Authority and gives out his functions.
Clause 7 provides that the Secretary of the Authority shall report to the board and this is a departure from the current scenario where the Director of Administration was reporting to the Permanent Secretary in the Ministry of Justice. It is just a cleaning up exercise to align with the Constitution and ensure the independency is guaranteed.
Clause 8 proposes that the proportions for the court retention fund be redistributed to accommodate the Zimbabwe Prisons and Correctional Services. What has been happening is that the retention fund was being shared between Judicial Services Commission, Police, National Prosecuting authority as well as the Attorney-General’s Office. Now we want to include the Prisons and Correctional Services as they are a key organisation in terms of the justice delivery system.
Clause 9 is just consequential amendments to the criminal code. Basically, this is to strengthen the governance structure of the National Prosecuting Authority, ring fence its independence and give the Prosecutor General deputies, deal with issues of retentions so that we can also have the Zimbabwe Prisons and Correctional Services getting a percentage of it.
I urge the Hon Members to pass the Bill and I move that the Bill be now read a second time.
HON. MATARANYIKA: The creation of the National Prosecuting Authority (NPA) is provided for by Section 258 of the Zimbabwe Constitution. It has the responsibility of “instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions” the National Prosecuting Authority Act was passed in 2014. At its enactment, the NPA created its staff from law officers who were under the Criminal Division of the then Attorney-General’s Office, the Ministry of Justice and the Public Service Commission. The NPA, through its board, has powers to recruit and fire its own officers. The Prosecutor-General and all his/her staff are required by Sections 259 (10) (c) , 260 (1) and 261 (2) of the Constitution to be independent and exercise their functions impartially.
The NPA Amendment Bill proposes to amend the National Prosecuting Authority Act in order to improve the governance structure of the National Prosecuting Authority. The Bill provides for the Deputy Prosecutors-General and also seeks to amend the Criminal Procedure and Evidence Act (Chapter 9:07).
In order to gather people’s views on the Bill in fulfillment of Section 141 (b) of the Constitution, the Portfolio Committee on Justice, Legal and Parliamentary Affairs conducted public hearings on the Bill in Harare, Mutare, Gweru and Bulawayo on the 13th and 14th of July 2020.
Clause 1: Title of the Bill
This clause states that the Act may be cited as the National Prosecuting Authority Amendment Bill, 2019. No comments were raised on this clause.
Clause 2: Interpretation Section
This clause repeals the definitions of Director for Administration and National Director of Public Prosecutions. It introduces a definition for a “Secretary to the Authority” and for Deputy Prosecutor-General (DPG). No comments were raised on this clause.
Clause 3: Amendment of Section 4
The clause introduces the Secretary to the Authority and the Deputy Prosecutor-General into the structure of the NPA to reconstitute the structure of the NPA. Members of the public submitted that independence of the introduced offices under the National Prosecuting Authority should be safeguarded in order to fulfill Sections 259 (10) (c), 260 (1) and 261 (2) of the Constitution.
Clause 4: Amendment of Section 5
This clause reconstitutes the board of the NPA. One of the major functions of the board of the NPA is among others; to appoint prosecutors and a National Director of Public Prosecutions to supervise these prosecutors. Another important function of the board is to make regulations providing for conditions of service of prosecutors and other members of the NPA.
Participants bemoaned the fact that Clause 4 of the Bill proposes that five of the board members are appointed by the Minister of Justice, Legal and Parliamentary Affairs. Dominance of the board by the Ministry may compromise the independence of the office. There was a proposal for the introduction of an Appointment Committee modeled around the Committee on Standing Rules and Orders to deal with appointments of members of the board.
Clause 5: Amendment to Section 8
The clause provides that the board, in consultation with the Minister, appoints a number of Deputy Prosecutors-General as it deems necessary, whose duties are to head specific sections or departments of the authority. The Deputy PGs are subject to the direction of and report to the Prosecutor-General on the discharge of their duties. The clause also creates the office of the Secretary to the authority with administrative and technical supervisory functions over staff of the NPA. The Secretary to the authority is the accounting officer of the NPA.
The general opinion from the public was that the appointment of Deputy Prosecutors-General should guarantee the National Prosecuting Authority’s independence and proposed that the recruitment of the PG and Deputy PG should be through public interviews just like with judicial officers in the JSC.
Clause 6: Amendment of Section 12
This clause removes reference to the National Director of Public Prosecutions and replaces it with that of Deputy Prosecutor-General.
Clause 7: Amendment of Section 15
The clause will remove references to Director of Administration and replace it with the newly created Secretary to the Authority. It will also provide that the Secretary to the Authority will report to the Prosecutor-General, not to the Ministry of Justice as the Director of Administration currently does.
Participants welcomed the development and opined that the relationship between National Prosecuting Authority and the Ministry of Justice, Legal and Parliamentary Affairs should not be such that the independence of the NPA is compromised.
Clause 8: Transitional Provisions: Amendment of Section 32
This clause provides that the current National Director of Public Prosecutions automatically becomes one of the Deputy Prosecutors-General and his/her service with the authority is deemed continuous. The provision seeks to ensure that there is smooth transition into the new structure of the NPA. In this regard, retention funds under the purview of the NPA will continue to subsist. No comments were raised on this clause.
Clause 9: Amendment of Chapter 9:07: The Criminal Procedure and Evidence (CPE) Act is the main statute on the procedures for the prosecution of crime in Zimbabwe. This clause will amend Section 2 of the CPE Act by removing the definition of National Director of Public Prosecutions, as the office is being removed. In Section 6 of the Act, the clause will insert the Deputy Prosecutors-General, who will be appointed in terms of the NPA Act. Section 266A (6) of the Criminal Procedure and Evidence Act will also be amended to remove reference to the National Director of Prosecutions and replace it with reference to the Deputy Prosecutor-General. No comments were raised on this clause.
Committee Observations and Recommendations
(1) Mr. Speaker Sir, over the years, the NPA has been beleaguered by allegations of malfeasance. A chorus of court decisions, media and NPA members themselves have attested to the fact that there have been serious concerns of impropriety within the institution. The Committee appreciates that the NPA plays a critical role in upholding the rule of law. It is crucial that it is seen to be free from all external pressures which might threaten prosecutorial independence;
(2) The NPA administrative structures established through this Bill are crucial in the administration of justice. As the sole entity constitutionally mandated to prosecute on behalf of the State, it is the Committee’s view that Government must enhance public confidence in the NPA. There is need to guarantee citizens that the State is able to offer protection where laws are not respected;
(3) With clear mandate brought by the Bill, the Committee calls upon the NPA to execute its mandate diligently and without fear, favour or prejudice. It must be independent and be seen to be independent;
(4) It is the Committee’s belief that where officials are mired in controversy and are consistently being taken on review for irrational decision-making and being found wanting by the courts, it damages public confidence. The NPA must instill a strong sense of constitutional values. When these values are internalised and fought for vociferously from within the NPA, the institution would enjoy the confidence of the citizenry;
(5) The Committee recommends that the appointment of the Board of the NPA be done independently, through the Committee on Standing Rules and Orders;
The Committee further recommends that the Deputy Prosecutors-General should go through public interviews.
The National Prosecuting Authority (NPA) is pivotal not only in the criminal justice system but also in the proper functioning of our democracy. The Bill is a welcome development as it increases the independence of prosecution services. The NPA is a public representative service, which should be effective and respected. The NPA must adhere to the highest ethical and professional standards in prosecuting crime and must conduct themselves in a manner, which will maintain, promote and defend the interests of justice. I thank you Hon. Speaker.
HON. PHULU: Thank you Madam Speaker. I rise on a point of privilege.
THE TEMPORARY SPEAKER (HON. MAVETERA): What is your point of privilege?
HON. PHULU: Madam Speaker, perhaps the Committee on Standing Rules and Orders should go and look at the rules and see how they can be refined to allow Members of Parliament, particularly those who are not here to participate in voting. I realise, we keep saying any debate and we are voting but it is not clear from the rules how those Members who are online are going to vote. I am following and they are complaining to say are we just watching or we are participating. In terms of this procedure, they can raise their hands and vote but the rules are not clear as to whether voting is confined to only Members who are in the House. I fear that some of the Bills that we pass, we do not want them to be compromised. If that can be looked at so that everyone can participate during debates.
THE TEMPORARY SPEAKER: Thank you very much Hon. Phulu for raising such a pertinent point. Currently, we are working on the rules concerning virtual meetings. I am sure we are going to be having rules pertaining to that. However, Hon. Members were told to submit their names whenever they would want to debate. Again, if they raise their hands, I can be able to recognise them and they can respond from wherever they are. Currently, we have said that all Hon. Members have to be using their tablets and what they have to do is from wherever they are, if they are going to raise their hands, they can actually contribute and I am sure we can be able to do that. Also, Parliament is also working in such a way that even us can actually be doing virtual meetings so that everyone will be able to view. Thank you very much.
HON. NDUNA: Thank you Madam Speaker. I just have a few points to add, the first one is the issue of computerization of the National Prosecuting Authority. I have noticed that it just talks of the merits on inclusion of issues that were not there in the previous Act.
I ask that there be expeditious computerization…
THE TEMPORARY SPEAKER: The Hon. Minister is asking which clause you are refereeing to Hon. Nduna.
HON. NDUNA: These are just recommendations.
THE TEMPORARY SPEAKER: So, you are giving a recommendation to the NPA office
HON. NDUNA: In this current set up where we are having computerization or e-governance system, it is prudent in the crime sector for there to be inclusion of computerization, effective, efficient and robust computerization of the systems. The issue that comes to mind quickly is that the records keeping; as long as there is no computerisation or inclusion of the information, communication and technology, a lot of our people out there are going to get away with murder. It is not going to be a matter that the National Prosecuting Authority members and officials are less qualified but it is the very reason that there is no computerization.
Secondly, Section 262 of the Constitution speaks to and about the bringing about of reports to Parliament, annual reports from the National Prosecuting Authority through the relevant Minister who, in this case is the Leader of Government Business and I am a member of the Committee on Justice, Legal and Parliamentary Affairs. If these reports are brought about according to the stipulation of that Section, we certainly are going to have their conduct measured according to the Constitution.
Section 263 of the Constitution speaks to and about the conferring of some additives or some work to the National Prosecuting Authority - that however, should not impede or complete on the mandate that it has. Madam Speaker, I thought it should be very clear on the work of Parliament in terms as it relates to the National Prosecuting Authority on those three issues; computerisation, e-governance as it is stated in the Constitution, the second one, the reports must be apt and should certainly adhere to the ethos, values and the principles of the Constitution as it relates to the tabling of those reports to Parliament and the conferring of some responsibilities by Parliament to the National Prosecuting Authority that does not conflict with their mandate and their current set up.
Madam Speaker, I want to thank you for giving me this opportunity to give some suggestions to the Hon. Minister as it relates to the National Prosecuting Authority Bill. The people of Chegutu West Constituency send their love and have sent me to come and present as I have presented. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Chair. I would like to appreciate the work that was done by the Committee in coming up with this report which is a very good report and also thank the Hon. Members for their contributions.
I wish to respond to some of the issues raised by the Committee. Madam Speaker, pertaining to the issue of the appointment of the board, I want to respectfully differ with what the participants said that the Minister appoints five members. If you go into the actual Bill, perhaps the only person that is appointed by the Minister is the representative from the Ministry, the other Members are seconded and the Minister’s decision is limited to what he is given.
If you go to clause 4, subsection D, five members are appointed subject to subsection 2 – [HON. ZIYAMBI: I am sorry Madam Speaker to switch on Zoom] –
Hon. Ziyambi switching on to Zoom
HON. ZIYAMBI: Thank you very much Madam Speaker, I had forgotten that we are using technology and I had shortchanged fellow Hon. Members.
If you go to the appointment of Commissioners, indeed it says five Members are appointed subject to subsection (2) by the Minister. It says, “One of the persons employed by the Ministry is the only one that I have a leeway to do what I can”, the other one is “One employed in the Ministry is responsible for finance”. Again it is appointed by the Minister of Finance; you will need financial ability because we are one Government, even though we claim to be independent. One person appointed for his or her ability and experience in human resource management, that is the second one. The other one is the auditor, the law society appoints somebody - a name of a person to become part of the National Prosecuting Authority.
It is not like the Minister is appointing five people but they are coming from several organisations. So, I believe in that context it is very good.
The other general opinion from the public was that the deputy prosecutor generals should be appointed through a public interview just like judicial officers in the Judiciary Service Commission. The authority to prosecute is vested in the Prosecutor General. In other words everyone else who is prosecuting will be doing so in the name of the Prosecutor General. So the Constitution then insulated that particular person and guaranteed his independence. Anyone else who helps, there is no need for ensuring that we subject ourselves to that process.
Judicial officers – every judicial officer when he or she is adjudicating a case is supposed to be independent, not to be subjected to the direction of anyone. In other words, if a magistrate is doing a case, you Madam Speaker cannot go and say give that person five months. I cannot go and say acquit. She is supposed to apply her mind, the facts that have been presented and give a judgment independently. Everyone else who works for the Prosecutor General is doing so for the Prosecutor General, so it is not fatally defective if it is like this because they are doing it under the direction of the Prosecutor General and I submit that it does not impinge in any manner on the independence of the Prosecutor General. In any event, he is the one who supervises all of them. They have to do what he wants not the other way round.
The other issue, Madam Speaker, is the Committee recommendations which are well received and I believe that the recommendations are very progressive to ensure that we strengthen the NPA and this particular amendment is targeted at strengthening the administrative aspect of the National Prosecuting Authority. Currently the accounting officer of the NPA is the secretary within the Ministry of Justice, Legal and Parliamentary Affairs and that we felt that there is no financial independence so to speak because they have to report to the accounting officer, but now in this Bill which correctly picked the secretary to the NPA board becomes the accounting officer. So we are now enhancing the independence of the Prosecutor General.
So I believe that the issues that have been raised are well received. Hon. Nduna’s contribution is also well received. He is speaking about computerisation. It is not in the Bill but it is a welcome development. It is an administrative aspect and I hope the Prosecutor General is listening or is going to read the Hansard. I will implore him to do that so that in executing their duties they can take on board the new trends that are emerging in the world of computerising our systems. I thank you Madam Speaker and I move that the Bill be read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: Wednesday, 2nd September, 2020.
HON. MADZIMURE: Madam Speaker, I am listening to those who are on Zoom, they are complaining. They are saying you are not recognising them, they also want to debate. Listen, they are complaining.
THE TEMPORARY SPEAKER: I can see Hon. Misihairabwi but unfortunately because we do not have any speakers here, we will not be able to indulge Hon. Misihairabwi. However, I am sure we are going to get into Committee Stage tomorrow. All Hon. Member that will be here that would want to contribute, we are urging you to come and sit in the House since we do not have any speakers currently.
So Hon. Members, I am sure you can hear me, I can recognise Hon. Misihairabwi. Tomorrow we will get into Committee and then you can make your contribution. I can see you are raising your hand on the chat, unfortunately because of the speakers, we cannot recognise you. So Hon. Members, those that come to debate, the other option is for you to also communicate with your Chief Whips so that at least they can be able to record you so that at we do not make your contributions not known or not seen. Thank you.
Also just for the record I recognise Hon. Kashiri. He is also raising his hand. It is important so that we can also appreciate that we can recognise other Hon. Members that are actually contributing to this.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House adjourned at Twenty Two Minutes past Four o’clock p.m.