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NATIONAL ASSEMBLY HANSARD 10 MARCH 2020 46 32
PARLIAMENT OF ZIMBABWE
Tuesday, 10th March, 2020.
The National Assembly met at a Quarter-past Two O’clock p.m.
(THE HON. SPEAKER in the Chair)
HON. SPEAKER’S RULING
CODE OF CONDUCT AND ETHICS
THE HON. SPEAKER: Following the point of privilege on failure by Members of Parliament to adhere to the code of conduct and ethics raised by the Hon. Misihairabwi-Mushonga on 3rd March, 2020, I wish to inform the House that to date, 244 Members of the National
Assembly; which represents 90.3% have declared their assets and 26
Members; which represents 9.7% have not declared their assets. In the Senate, 73 Senators representing 91.25% of the Senators have declared their assets while 7 Senators…
Hon. Member having been making noise.
THE HON. SPEAKER: Order please. I will repeat. In the Senate, 73 Senators representing 91.25% of the Senators have declared their assets while 7 Senators representing 8.75% have not declared their assets. The foregoing figures are inclusive of Hon. Ministers and all back-benchers. All the Hon. Members who have not declared their assets will be given until Thursday 19th March, 2020 to comply. Failure to do so will lead to the constitution of a Privileges Committee to investigate the matter and come up with the necessary censure. Please be guided accordingly.
ANNOUNCEMENTS BY THE HON. SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE
THE HON. SPEAKER: I have to inform the House that I have received a Non-Adverse Report on the National Prosecuting Authority
Amendment Bill [H. B. 20, 2019] from the Parliamentary Legal Committee.
ERROR IN THE ORDER PAPER
THE HON. SPEAKER: I have to draw the attention of the
House to an error in today’s Order Paper where the date is reflected as Thursday 10th March, 2020 instead of Tuesday 10th March, 2020. Please correct accordingly.
PETITION RECEIVED FROM MR. F. MANDAVA
THE HON. SPEAKER: I also have to inform the House that on Thursday 20th February, 2020, Parliament of Zimbabwe received a petition from Mr. F. Mandava, representing Madzimbabwe Rozvi Empire Trust, requesting Parliament to amend the Constitution and other relevant pieces of legislation in order to ensure that traditional leaders are fully recognised and empowered.
The petition has since been referred to the Portfolio Committee on Local Government and Public Works.
POPULATION DEVELOPMENT, SEXUAL REPRODUCTIVE
HEALTH AND RIGHTS CAUCUS
THE HON. SPEAKER: I wish to inform the House that the
Population Development, Sexual Reproductive Health and Rights
Caucus invites interested Members of Parliament to join the Caucus.
Interested Members should register their names with Ms. Ndawana and
Mrs. Mafuruse who will be stationed at the Members’ Dining Room on
10th and 11th March, 2020 from 1430 hours-1545 hours. Registered Members are invited to an inaugural meeting to be held on Thursday 12th March, 2020 at 0830hrs in the Government Caucus Room.
UNITED NATIONS INTERNATIONAL WOMEN’S DAY
THE HON. SPEAKER: Hon. Members, the 8th March is UN
International Women’s Day and it is very important that we observe that day. Unfortunately, this particular year it happened on Sunday. There was a request that the day be declared a public holiday. To strengthen the position of the Chair - in order to put the processes in place, it is my recommendation that a motion be moved, debated, hopefully adopted and then from there we can use that adopted motion as a request for ensuring that the 8th March is a public holiday in Zimbabwe in respect of the womenfolk – [HON. MEMBERS: Hear, hear].
The Hon. Speaker having recognised Hon. T. Zhou – [HON.
MEMBERS: Inaudible interjections.] –
THE HON. SPEAKER: What is that? Please do not pre-judge the
Hon. Member or you will be judged accordingly.
HON. S. BANDA: Mr. Speaker, when you are coming in it is
Hon. Zhou who tells us that the Hon. Speaker is coming so thank you for
THE HON. SPEAKER: I thank you for your humour.
*HON. T. ZHOU: My point of privilege regards what you have just said about commemoration of the International Women’s Day. I am concerned Mr. Speaker as I was born of a woman. As you came through with your procession Mr. Speaker it deeply concerned me that there was not even a woman amongst your procession. I urge you Mr. Speaker that for this week your procession should be made up of women only. Thank you – [HON. MEMBERS: Inaudible interjections.] –
THE HON. SPEAKER: Order, order! I always joke with Hon. Zhou for his famous anecdote when he sees members of the female folk and he says can I come for the inspection in loco – [HON. MEMBERS: Inaudible interjections.] – so I am not surprised. Your inspection is correct but it is up to you Hon. Members that the procession includes the whole of the Speaker’s panel which has got two panellists who are female. Until you change that I shall come in alone.
*HON. KARENYI: Thank you Mr. Speaker. I stood up to put
myself in your shoes. Since it is International Women’s Day. I have a woman who came to my office today and it really touched me because it affects me executing my mandate. The 10th March Mr. Speaker, is the same day that Itai Dzamara went missing. The wife to Itai Dzamara is a woman just like me and has the right that her husband whom she got married to and cooked for did not come back home.
Mostly when someone goes missing, later on their bodies can be recovered or they can come back alive and this gives rest and peace of mind to the affected person. So she came to me and said she approached the Government yesterday with her letter requesting justice, and the
Second Republic should make an effort to explain as to where Itai
Dzamara is so that he can go back to his family. I thank you.
*THE HON. SPEAKER: Yes, we have taken note of your issue. Yes, the wife has approached Hon. Karenyi. I think from my understanding, this issue is before the Executive. I heard a statement about two days ago that the search is still going on and some fund was put in place for anyone with information to come forward to indicate so that there is a closure. I think that is what the family wants that there be a closure.
*HON. NDUNA: I have a request Mr. Speaker Sir, you once
informed me that the issue of the radio station that used to capture proceedings in line with section 141 of the Constitution that says whatever happens in this House should be disseminated to the people we represent and there should be live coverage. You advised me to put it in writing to the Minister. However, my request was that as the Minister is considering this matter, I was requesting that this Parliament of which you are the head, be seized with the matter so that Radio Zimbabwe (2) and Classic 263 can also access information and disseminate to the people we represent. In other areas that we represent, there are no newspapers. We have The Herald, News Day and Daily News but in other rural areas they cannot get newspapers and the radio stations are not able to disseminate this information, especially what you are saying to the people that we represent. Mr. Speaker, I implore you to be seized with the matter so that those in the remote areas can also access information on what is going on in Parliament. I thank you.
*THE HON. SPEAKER: Thank you Hon. Nduna. We have
machines that are taking all the information to our radio and I believe if they are able to tune in to the station they can listen to what is happening here. At the new Parliament, we will have a radio and television station dedicated to Parliament to carry what is being debated in the House. The section that you referred to Section 141, refers to Public Hearings. All public hearings are covered by television and radios. I always see it on television and listen on the radio. There is also a programme on Constituency Talk which is also aired. If that is not happening, we will deal with the matter accordingly.
*HON. T. MLISWA: Thank you Mr. Speaker Sir. I stood up with a concern over our welfare as parliamentarians. As our leader and father we keep quiet because we respect you but we are facing challenges. We are the ones who pass the legislation for the Government to operate. When we came to this Parliament we were being given US$2 000 and sitting allowance was US$75. If you compare that money with other countries, it is not much but we did not complain. We came here and we passed the budget. Since the Minister of Finance changed to a monocurrency system, I was looking forward to getting the US$2 000 and US$75 at interbank rates. There are other rates which are there - we are not looking at them but as legislators who pass the laws of the land, the interbank is the official rate.
Currently the money that we are getting is nothing. We cannot even pay school fees for our children. a lot of things are happening. We are even failing to access medical care because it is expensive, what more of our children? my request is that as our head and father who heads the Stand Rules and Orders Committee, most people are in depression. We want to know why our issues are not been addressed. It seems our superiors are sitting pretty. I interact and talk to my colleagues. I am brave enough to speak up but what I am talking about concerns everyone. I said to myself no, I cannot keep quiet on this matter because we know that if we bring this before our father he will understand.
The other issue is that the stands which we were given, if the money that we are paying to hotels was given to us, then a person can make a choice whether to develop the stand or not. You should only be concerned about the attendance of people. The money that we spend in hotels can actually cater for the mortgage and families. It is my request that on the issue of stands and houses, we request that mortgages be made available so that we can pay the mortgages in the form of a stop order. My request is that you may consider these matters because my superiors have also said since my superiors is being treated at the upper level, why can we not set up our own committee to represent us and bring these issues to our superiors, because those whom we are sending do not seem to be making headway. I thank you.
*THE HON. SPEAKER: The issue raised by Hon. Mliswa I have taken note of it. We met with the Chief Whips today and I advised them to go and investigate, and inform us on as to how we can address the issues of welfare for the Hon. Members. It is a matter that is on the table of the Chief Whips. I am sure they will listen, take into consideration what you have said – [HON. MEMBERS: Inaudible interjections.] – Quiet, else I will evict you from this House. It is a challenge for me to inform elderly people like you to be quiet. You should also consider the fact that you are adults and you should find it in yourselves to just keep quiet without being told. Thank you.
I was saying that the Chief Whips should investigate and consider what Hon. Mliswa said that before, you were paid in US dollars and we will see what they are going to bring to the table in terms of interbank exchange. I am sure that on Thursday, after they have engaged in your caucuses – the challenge is Hon. Mliswa does not have a political party as an Independent. Maybe he will go to ZANU PF for an hour and then join MDC for another hour. It is up to him but his matter has been noted. I am sure the Chief Whips have taken note again.
I saw an Hon. Member wanting to speak, I stand by my ruling no more than four points of privilege.
MARRIAGES BILL [H. B. 7, 2019]
First Order read: Adjourned debate on motion on the Second
Reading of the Marriages Bill [H.B. 7, 2019].
THE HON. SPEAKER: Order. Did you hear what the Clerk has said? Do not force the Chair to be telling you to maintain order. Be self respecting and that will be more dignifying rather than being mentioned to go out. Let us behave.
Question again proposed.
HON. MAPHOSA: Thank you Mr. Speaker Sir. I rise to add my voice on the Marriages Bill debate with regards to the public hearings that we did. I have been longing to debate but not getting a chance, maybe it was waiting for me to debate in this International Women’s week, of which I think I am very much pleased to do so. Mr. Speaker Sir, I will start by quoting the Minister when he was reading his Bill that he had no sinister motive whatsoever when he was drafting this Bill. He further went on to say, he wanted to protect every woman through this Bill. I want to say Mr. Speaker Sir, according to my understanding and reading of this Bill, the Minister was very much correct that he has no sinister motive. Whatever has, it is trying to protect each and every woman regardless of the social standing they have, whether they are married in which chapter or not married, whether they are selling tomatoes, vendors or whatever, they remain women.
Mr. Speaker Sir, I will go straight to the issue on Clause 40, the much talked of which is the civil partnership. Mr. Speaker Sir, the Minister said they have sat as the Executive and they thought of repealing. I stand to be guided, is it the duty of the Executive or we have to debate it first then we can speak of repealing the Clause. Mr.
Speaker Sir, when we went around doing the Marriages Bill public hearings a lot was said by women and men respectively especially on Clause 40 which is the civil partnership. Mr. Speaker Sir, I feel very sad on the way that this Chapter was interpreted to the general public who did not have an understanding of the reading of Bills. It was interpreted in a way to saying this Bill or this Clause has come to destroy marriages which were there, which is not true. This Clause was put in place to protect those women who found themselves in situations whereby when they go to court, they have no standing to defend themselves on what they would have gone through during the tenure on which they were in that relationship. There was no place when I read Mr. Speaker Sir, where this Clause encouraged side chics as it was said or homosexuals. All this Bill was trying to do was acknowledging that these things are happening, acknowledging that there are women out there who found themselves with children of men who then go out and say no, I was married before so I have to run away; or women who would have gotten married but not registered their marriages but know that they are staying with those men having children and acquired assets that are later taken away by relatives in the name that we do not know you; lobola was not paid for you.
Mr. Speaker Sir, going back to public hearings, there was a woman who related her story of having been married for twenty years with a men, built houses, had children and had everything. Everyone in that area knew that she was Mrs. so and so but painfully, no lobola was paid for her. Mr. Speaker Sir, when things were hard, the woman went to South Africa to work for her children. When she was there, her husband died. When she came back, she found that everything that she had acquired for twenty years in a marriage was taken away from her simply because she had no marriage certificate. Mr. Speaker Sir, we have women going through this each and every day. This Bill was drafted to protect such women from callous people out there who then take away everything that you have worked for in the name of you not having a marriage certificate. Mr. Speaker Sir, in Rusape, a young man stood up and said, I have my wife and I do not have money to pay lobola but I love her. We have been together for six years. To me, she is my wife.
Mr. Speaker Sir, like what another Hon. Member said in this House some time ago, in here, in this House, we have products of people who were not legally married. They did not have documents and they did not pay lobola but they gave birth to Hon. Members in this House who are still Members of Parliament respected in their communities.
They were born of parents who had no legal standing in the community. So Mr. Speaker Sir, as we stand in this House, I stand to represent every woman out there. Having a marriage certificate Mr. Speaker Sir does not differentiate you from a woman who is selling tomatoes and does not have a marriage certificate. That woman remains a woman and in this
House we have to protect each and every woman – [HON. Members:
Hear, hear.] -
Mr. Speaker Sir, when we are drafting a law, we do not look at ourselves. I know we could be having painful stories that we can say that happened in our marriages but when we are making a law, we look at people out there that we represent. If I had a husband and somebody took away my husband, it must not be a standing that I stand in this House and say I will not protect any woman who finds herself in that position because I had a bad experience. Mr. Speaker Sir, I stand in this House to say let us look after women out there. What about the children of those people that we are saying are not married. What happens to those children? We see street kids all over and it is because we have failed to make a law that protects women who do not have a good social standing in the community and those who do not have a say in the community.
Mr. Speaker Sir, let me say this; I heard that pastors were the ones who were fronting the issue of civil partnerships saying it is a bad thing. We have millions of churches in this country but we still have these situations happening. If the pastors think this is bad, why not …
HON. T. MLISWA: On a point of order Mr. Speaker Sir. The
word pastor is not fair. I think Parliament will not be seen in good light.
I think a better word must come out of that.
THE HON. SPEAKER: Which one?
HON. T. MLISWA: People – [HON. MEMBERS: Inaudible
THE HON. SPEAKER: Order, order! We cannot expunge the
use of the word pastors. Perhaps qualify and say some pastors.
HON. MAPHOSA: Thank you Mr. Speaker Sir. Thank you for
the correction Hon. Member. I will use the word some church leaders. Mr. Speaker Sir, the reason why I am quoting them is because in our public hearings, they were coming and they were airing their views as pastors. They did not hide their social standing in the community but I stand corrected. I was saying if church leaders were really – [AN HON. MEMBER: Some.] – Okay let me leave the issue. I think the Minister has taken note of that. It will disturb me from making my contribution. When we asked them to say if you are so much against these partnerships, what do you say about children who come out of these relationships and they said children are a gift from God so we accept them. So, that is where I raise my question from but I will leave it since it seems like it has raised a lot of interest Mr. Speaker Sir.
The only thing that we can look at in this clause Mr. Speaker Sir is subsection 5, which says it agrees that someone can go out. I think we can look at that subsection alone. We do not throw it away but we can look at it as this House debates to see how best we can put it through but as for Clause 40, I do not see anything wrong witht it. The other issue Mr. Speaker Sir some were saying we will rather change the words civil partnership without changing what it stands for. Maybe we can put it under the unregistered customary marriages or whatever but we have to find a way to make this thing be in this Bill.
Mr. Speaker Sir, I will go on to the child marriages where we have got the age of 18 as the age of marriage and the age of 16 as the age of consent. Whilst the majority stood up to say the age of marriage should be 18, there are also important things that were raised on this issue. We all understand and agree that for a person to be mature and be old enough, that person must be 18 and above. However, are we really saying every young woman indulges in sex at the age of 18? If that is what we are agreeing to as this House, then I have no problem of putting the age of consent and the age of marriage both at 18. The truth out there Mr. Speaker Sir is that children are indulging from the early age of 13 and we have seen others at 12 years. It is not what we want as parents. It is not what is acceptable in the community but it is what is happening Mr. Speaker Sir. As this House – [HON. T. MLISWA: Inaudible interjections.] – Can I be protected Mr. Speaker. I am speaking of issues that Hon. Mliswa not acceptable to. I am speaking of what I see happening.
I was saying if we agree that children are indulging at an early age, what are you doing as a law making body? Of course it is the voice of the minority and the majority will always take the day but I am saying let us look closely and do what is best for our country and children. We are having abortions and children are dying because we are failing to accept what is happening on a day to day basis.
Mr. Speaker Sir, with early marriages, I acknowledge that the chiefs are now marriage officers which many applauded to say it is a good move. For those that are failing to travel from rural areas to urban areas to register their marriage, it will be made easier for them to be registered. However, there were a lot of issues that were raised from that. The first issue was for chiefs to ascertain the actual age for the people that will be getting married. Mr. Speaker Sir, we know that especially in the areas of Matabeleland, there is the issue of statelessness because most of the people do not have birth certificates. A lot of people in Matabeleland do not know how old they are because you can only know how old you are if you have got a birth certificate and an I.D. The parents can say the child is 19 years old whilst the truth of the issue is that they are maybe 14 or 15. How will the chief ascertain the actual ages of those that they will be marrying?
The other issue was the issue of payment to the chief. We know that whenever they are sitting, there are some things that are paid like goats and so on. We know that most people are not registering because they say it is expensive for them to do so. So, is there not going to be a problem with the issue of payment?
The issue of accessibility, we know that in rural areas we have got maybe a chief staying a very long distance from where those couples who wants to get married will be. Therefore, the distance issue will also be a challenge.
Mr. Speaker Sir, there are children who are already married. They were forcefully married before the age of 18 years - what does the Bill say about that? As a Government, are you saying that has already happened, let us leave them or there will be a way of making sure that they finish their school or fulfill the dreams that they had before they were forcefully married.
On marriage and property rights, even those that are in marriages are registered as ‘out of community of property’ when it comes to the rights of property in their marriages. This means that those who have their names registered on the property have got the right to sell or to give out without the other spouse knowing. I think that is something that was not captured in the Bill. The marriage has to be in community of property so that each spouse has got equal rights when it comes to the property they acquired together.
When we were moving around with the Defence Committee, the issue of widows of war veterans; it was very much highlighted because when the war veteran dies, the widows’ allowances are cut to half.
These things happen because the ‘out of community of property’ is not clearly spelt out in the issues of marriage and property rights.
Mr. Speaker Sir, I will conclude by the issue of willful transmission of HIV/AIDS. I know it has been debated for a long time in this House. This issue came out very clearly during our public hearings. We cannot, at this time, as Zimbabwe ascertain who brings HIV/AIDS unless we are tested before getting into that relationship. It has been said over and over again that women are the ones who find themselves wanting in this issue because if you are pregnant, you are compulsorily tested. If you are found positive, the male counterpart will say you are the one who brought the illness in the home. When a man knows that he is the one who was HIV infected, he can willfully transmit, and then rush to the hospital for testing and because some men are very clever and cunning, they will say I was okay it is you who came with this disease. So we have seen a lot of women, I was even reading from somewhere where a woman was jailed because the man had said she had infected him with HIV.
So, Mr. Speaker, I think unless we have got those machines and we are sure we can detect who brought the HIV in a relationship, the willful transmission has to be repealed from the Bill. I thank you – [HON.
MEMBERS: Hear. Hear.]-
THE HON. SPEAKER: Hon. Maphosa has set a standard, this is what your Presiding Officers expect – [HON. MEMBERS: Hear, hear.]- When you read the Bill, be critical, be constructive in your criticism, make suggestions, then we are truly law makers. The Chair here, does not take sides during debates but as a matter of enriching your debates, it is suggested that you read Justice Manyarara’s judgment on civil union; you will be so educated, so that when you debate here, you debate within the parameters of wisdom.
HON. MISIHAIRABWI-MUSHONGA: Thank you very much
Mr. Speaker Sir. I had decided that I was not going to discuss this particular Bill but I must say my hon. sister gave me the courage to go into this arena. I will explain why some of us had felt that we may not even begin to debate. For some reasons the debate on this Bill had been so messed up that if you were widowed or single, you were not given the right to even begin to debate.
Unfortunately, like Hon. Maphosa set the discussions around Section 40, and we must put the blame squarely on the Executive because as she started this debate she indicated that there is some problem with the way the Executive dealt with this particular Bill. At no time in the country have we had a circumstance where a Cabinet sits and makes a determination on a Bill that has been gazetted and therefore, sways public opinion on that particular Bill. We actually had Cabinet on the day they had met coming out saying Section 40 was against the values of this country. This was an indication of where we went horribly wrong. So, as far as process and legal procedure is concerned, there was something fundamentally wrong with Cabinet taking the position that they took. They could have come here, most of the Ministers are
Members of Parliament in this House, they could have lobbied and the
Minister himself could have come here and then said after consultations,
‘I feel that there is something that we need to change around Section 40’.
However, to make a public announcement on television as the Executive, and saying we have now removed Section 40 on the Bill, which legally was wrong because they could not do that, but it swayed public opinion. Having swayed public opinion, I think the other problem that I have is actually with Members of Parliament in this House, particularly the male members of Parliament – [HON. T. MLISWA: Some!] – Okay, some members of Parliament. When this Bill was brought to this House, I actually took the time to speak to most of the individual male members of this House. I wanted to find out one thing, how many of them were married under civil marriage. I can safely say about 90% of the males in this House are not married under civil marriage – [HON. T. MLISWA: Yes, that is true.] –
What it means Madam Speaker is that if we were to argue on an issue of conflict of interest, in fact 90% of the male members of this House should not be debating on this particular Bill because they do have an interest. They have an interest in protecting their rights to not be taken on in the event that they walk out of a relationship, because what we have done by getting Section 40 out of here means that a man who went and paid lobola but has not gone and registered the marriage if you were to go to any court that man cannot be held accountable and that is what Section 40 was trying to do.
So when men say we do not want Section 40 Madam Speaker, they were in fact protecting their interests. Unfortunately, women being who they are, the moment you threw the flag about small houses and you are going to take away my man from me, they completely forgot the principle that was underlining this particular issue. This was not about the side chick she talks about. This was fundamentally about women who are the majority in this country but have not been able to get their men to go and get their marriages registered. Even now that we have said the Chiefs can register marriages, I want us to go back a year from now and see whether the women in those rural communities have been able to drag their men to go and get the marriages registered.
When I asked the men that are here why they are not getting their marriages registered. Some of the reasons you would laugh Madam
Speaker. ‘Oh, the moment you get married and you register, you will be killed, kurudzi kwedu vanhu vakangochata chete vanobva vafa’. They just do not want commitment – [HON. T. MLISWA: That is why I am single.] – because commitment is about getting and getting yourself registered.
I just want to make sure that the women that are sitting in this House that have been part of pushing for the taking away of Section 40 understand that fundamentally this was a male agenda. It was a male agenda around ensuring that they are not held accountable but a patriarchal agenda about controlling the sexuality of women, because at the end of the day you can do what you want and you can walk away scot free. This debate that we are having here is the debate that some of the women who were in this House when you were not in had around issues of maintenance.
If you can go back Madam Speaker and read the Hansards of that time, the people that were fighting against the issue of maintenance were the males and the women were brought in to say oh, you are going to have to look after children that are being had outside your relationship. If this goes on and like Hon. Maphosa succinctly put it, I have no problem with going to Section 40 and saying let us remove subsection 5 or let us find a way of putting it, but to come back and say let us remove the whole of section 40 is to actually say 80% of the women had absolutely no right.
The sad thing as we read in the newspapers Madam Speaker, is that those men that hold political office, including men that have been in the judiciary at the highest levels - if you go back as we speak today, the women they were living with at the time they were dying, the women who looked after them at the time they were dying were left with absolutely nothing. Why? What that man did is he walked away from that woman, came and lived with this younger woman, and made sure that at the time that he is dying, has left nothing in the will for this woman, and has left nothing for her and right now, that is the woman that we are talking about. If you are sitting here as Members of Parliament in 2020, and with a whole conscience, you think it is okay that a man walks away from one woman, goes and lives with another, is looked after by that woman and leaves nothing for that other person.
Lastly, Madam Speaker, again the issue that Hon. Maphosa raised very clearly, the issue around the property regime in this country. I had hoped that the women that were holding banners and calling small houses as if the men themselves are not small houses. Those that were going around holding banners for small houses would have spent most of their time fighting against the property regime in this country, because the property regime in this country separates marriage to property. This is why a man can sell a property today with you and your
5.11, so that certificate means absolutely nothing.
It also may mean absolutely nothing and I am a good example of that Madam Speaker, with a civil marriage, with a 5.11, having pushed for a will, I still got myself outside with a suitcase with my dresses and nothing else – [HON. T. MLISWA: Nekungwara kwako ikoku muzukuru.] – nekungwara kwangu ikoku, with the best lawyer Beatrice Mtetwa in the world. So if we were dealing with marriages and we were dealing with a Marriages Act, we should have been looking at the issues around the property regime. What does the property regime say? What does it say for a person who is in a civil marriage or for a woman in a customary marriage?
I want to say I applaud this particular Minister, a male who has taken the most abuse for this particular Bill and called all sorts of names by the very same people that he wanted to protect, which is why if she had not stood up today, I had said to myself ha-a vakadzi vacho vari kurwira nyaya dzemasmall house ngatimbogarai ipapo because I knew 2 – 5 years from now we would be back in this very House. So what I am going to call to the Minister is at least you have heard some different voices around this thing, can we go back to Section 40, redefine it and make sure that we come up with a particular clause that protects the majority of the women.
We know that the Judiciary has already taken a position on this, if you look at the current judgments that judges have made in circumstances where there is no registered marriage - they have had to either use tacit to define who brought what but tacit is difficult because it means every time you buy a stove or brick you have to keep a receipt. Unfortunately, if we are in this madness that we imagine exist which is love you tend to forget that you are dealing with a male wawakaona aine mazino ake akazara who you cannot control. Women get into this voodoo thinking and you do not realise that the very same man who is saying they love you today will become the animal who will be kicking you out. Let us make sure that we protect the women by putting in this.
To close up, for time immemorial, women have tried to change male behavior by all sorts of things. The thing that you will not change about males is the fact that they are who they are and we will do certain things that make us crazy. Nothing in the world; including legislation can keep a man from philandering - absolutely nothing, until the day we find a lock and key where we can key their organs and open them as we wish, it will never end. Thank you Madam Speaker.
*HON. CHIKWAMA: Thank you Madam Speaker. I also want to weigh in on the debate about the Marriages Bill. As we were conducting public hearings in regards to this Bill, the majority of the people that we visited in the communal lands had the same question. You are talking about marriage and in terms of this marriage you are talking about partnerships. They said there should be difference between marriage issues and those that relate to lovers. They said the Bill did not clearly spell out in terms of property and how it should be divided. That was more elucidated in terms of the partnerships, in terms of what each partner would get at the end of the relationship. This did not go down well with the people in the communal lands. The majority of elderly women that I met who are just as old as me said they got married around 1970s and 1990s and they used to grow their groundnuts and would build a house in Harare. Today they know that they have a house in Harare and if they were to come to Harare, they are known by everyone that she is the lady of the house.
Maybe the partner who is assisting the husband in building the house will be thrown out and that there is need to ensure that such marriages are safeguarded even if they may not be registered because they may not have certification to established relationship and that there should be an alternative law to also recognise those without certificates or without registered marriages. That was the major bone of contention as has been clarified by others. People were under the misconception that it would help those under partnership.
The majority of the people in the communal lands said that they should clearly interpret the language of interpretation in terms of partnership. Others thought that the partnership was between a man and man or a woman and woman. If that term was used, it does not go down well with the people in the communal lands. It would appear as if something is hidden or something is sinister. It should clearly spell out what the partnership is all about. You may understand it to mean that it is a relationship between a man and a woman but if research was to be done, there was a Bill that was passed in America that started with same sex marriages. These issues need to be clarified and that is the only grey area in as far as partnership is concerned even if they wanted it to be part and parcel of the Bill. It is because of the interpretation that it had problems.
On the age of the person who should get married or marry as well as the age for sexual consent is another grey area. For a 16 year old boy or girl to be involved in sexual intercourse and you go to the Marriages Act, it is saying one should get married at the age of 18 years. It shows that this was not clear; the two were not in sync, they should be the same. The age of majority should be 18 years of age. That one should be sexually active and consent to sex should be at the age of 18. This is what we found out from the communal lands.
On the criminalisation of HIV/Aids, a lot of people complained about it because in the majority of cases, it is the man who lives in town and in the past they were more educated than women and they would quickly discover that they are HIV positive. On seeing that the woman might be suffering from HIV, they would take her to be tested and blame her for infecting him. It would be good if that law could be scraped.
The law does not take the interest of anyone any further.
On the issue of marriage officers, they said the chiefs should also be marriage officers because that is in our Constitution. People accepted in toto the majority of the issues and that the people should be educated because the chief might then say that he may want a beast as payment for him to solemnise a marriage. There was serious concern that they should be educated about it so that there is systematic discharge of the duties. Some would totally agree and others would say people would cause them to pay. A number of people were saying this was welcome.
It had made things easier for them but the traditional marriage officers should be educated. I thank you.
HON. TOFFA: Thank you Madam Speaker. I would like to add my voice to this debate. As I add my voice to the debate, I will start off by saying we need to remember whenever we debate that our
Constitution requires us to go out to the people and get their input. Whatever we are discussing here is from the people. Madam Speaker, most of the areas we went to with regards the Marriage Bill, most of the people particularly in the rural areas – [HON. MEMBERS: Inaudible interjections.] –
THE HON. DEPUTY SPEAKER: Order Hon. Members.
Honourable sitting to my left side, please order.
HON. TOFFA: Thank you Madam Speaker for your protection. Most of the people that we visited at the public hearings in the rural areas were very happy with the Marriage Bill because it spoke to acknowledging the customary marriage, the lobola. They were worried as to why we acknowledged the civil marriage, Chapter 5:11 more than we did our own customary marriage. When they heard that both marriages were brought to par and that they were both acknowledged, they were excited about that. Most of them were still of the opinion that if somebody is married in the customary law and somebody married under Chapter 5:11, they were given preferential treatment or 5:11 overruled the customary law. They were happy to hear that you wanted to make sure this will be done.
Madam Speaker, some of them were happy with the age of marriage to be aligned to 18 years. They were concerned about young children that were already married, what would happen to them. They suggested that Government must make sure that a budget was made with regards to children that will be taken out of these marriages. They wanted to know if children who got married before the age of 18, if this law is passed whether the law would enable removal of the children from their marriages and what would happen to children born out of that unlawful marriage. So it is important that we make sure that
Government puts this into consideration.
Madam Speaker, when they asked us these questions, we actually narrated to them. We made them aware of the SADC Model Law on the eradication of child marriages. There was also a situation in Malawi in 2015 whereby a female chief allowed over 300 child marriages. From that time, any chief that allowed a child marriage to take place, the chieftainship was actually dethroned. We also as a country need to find ways of inspiring and making sure that these children that come across such situations are protected and looked into. In Ghana, the Government takes the girl who marries early, sends her to boarding school, gives the parents or guardians looking after the children grants to make sure they are looked after because most of these children that go into these marriages – [HON. MEMBERS: Inaudible interjections.] –
THE HON. DEPUTY SPEAKER: May the Hon. Member be
heard in silence please.
HON. TOFFA: Most of these children that go into these child marriages come from poverty stricken backgrounds. So if you take them out of this situation and you do not actually cater for that child, they will go back again and get married. If these children are taken out of this environment and send to boarding schools that will be of great help to the nation. With that explanation, most of the communities seemed to embrace that and were very happy that the girl child will then be able to achieve whatever they want.
Madam Speaker, in most of the public hearings that we went to, when it came to the civil partnership section 40 (5), they were quite clear that they were not interested in particular with subsection (5) but they said section 40 as a whole was not bad. The reason they said that Madam Speaker, was because most of the families in our communities are made up of couples that live together as husband and wife. I am not talking about couples that maybe are having extra marital affairs but I am speaking to couples that actually live together as husband and wife and acquire properties during their stay. Madam Speaker, in the event that either the wife or the husband passes on, you find either family of both of them depending on who dies first; will come in and take all the properties and children because the couple was not traditionally or legally married. Looking at that kind of a scenario, they were happy with section 40.
They also spoke to the decriminalisation of the willful transmission of HIV/AIDS. They spoke to the fact that when women are pregnant, be it in any relationship or in a marriage set up, women are required to go for certain tests and within those tests they are required to undergo HIV/AIDS tests. So the woman is the first one to come home and disclose to her partner that she has tested HIV positive and the husband would in most cases blame the woman for bringing in that illness. So they felt that it was unfair and it should be decriminalised. Some of the women, I think it was in Lupane where one of the women who contributed spoke to the fact that there are other illnesses like flu for instance that if somebody passes on flu they are not arrested - what is so special about HIV and AIDS? They felt that decriminalisation of HIV and AIDS is unnecessary. I thank you Madam Speaker.
HON. MATEWU: Thank you very much Madam Speaker. I see
the Minister is eager to move this Bill, I will just be brief. The issue of the Marriages Bill, I did not actually plan to debate it but there has been a lot that has been said about section 40 on civil partnerships. I just want to say that Zimbabwe as a nation does not live in isolation. We are certainly not living in the stone age. I have lived in other continents for a number of years. The most pertinent issues that most people were worried about in terms of civil partnership was; is it going to allow same sex marriage? Secondly, what will happen to those people who are already married? I am a Christian; we respect the sacrosanct of the marriage institution. If you read section 40, it does say a man and a woman, when it refers to civil partnership. I want to support this Bill in its entirety. This Bill is very liberal and as a liberal person, I am very much happy that at least now those that live together can actually have a civil partnership.
People are saying, let us repeal subsection (5) of the Bill, I disagree with that. Most of those people normally have three to five wives who are in this House. What subsection (5) is only doing is; even if you are married you can actually at the same time have a civil partner, as many as you can. This is already happening in this country. It is just legalisation so that those who are affected can have a legal standing to ensure that at least they are part of the person in terms of distribution of wealth and whatsoever. So I support this Bill in its entirety.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Madam Speaker. Madam Speaker, allow me to thank the Hon. Members for the robust debate around the Marriages Bill. I also want to thank all those that participated, the Committee on Justice that participated in the public hearings and for gathering the views of the people. I believe we have all been enriched by this exercise. In that regard Madam Speaker, allow me to respond to some of the issues, more specifically that were raised by the Committee because the Committee gathered the views of the generality of the people and just respond to some of them.
The Committee was of the view that we have lessons that we can learn from; the SADC Model Law on Eradicating Child Marriages and
Protecting Children Already in Marriage which creates a comprehensive mechanism for the State to offer financial and psychosocial support for children who would have been emancipated from marriages and the protection of children against child marriages. The Committee was also of the view that the age of consent to sexual intercourse should be addressed by the Bill and their view was that it should be raised from 16 to 18. Madam Speaker, I want to say that the recommendation that the SADC Model Law be effected is highly commendable and we believe when we look at the regulations that will be passed once the Bill becomes law we can incorporate some of the important issues that are highlighted in the model law. By and large, the majority of the things that you allude to in the model law, we have tried to capture them in the Bill but whatever is left I think we can address them.
Regarding the age of consent Madam Speaker, this Bill per se does not deal with age of consent. It is addressed in another Act, that is the Criminal Law Codification and Reform Act, where it looks at the crime of rape. However, I must add that we should learn to differentiate legal issues from issues that have to deal with morality. In countries where
the age of marriage is 18, they have robust educational sexual reproductive health programmes but they do not criminalise it. When you speak about raising the age of consent, you must also be mindful that you are now introducing a crime. You must also be mindful about the criminal capacity of these various children. In Zimbabwe, anyone below seven has no criminal capacity and that is straight rape; in fact from 12 downwards. From 12 to 16, the offence is having sex with a young person and above 16, it is not a criminal offence. I think the crafters of the law were mindful of reconciling the criminal capacity of the various age groups and criminalising somebody who is able to reconcile the wrongfulness of their act and be able to do an act that particular individual can be accountable for.
In Zimbabwe, young persons can be jailed for committing any other offence. Are we then going to say that anyone below 18, if they commit an offence, they cannot appreciate the wrongfulness of their act. This is just food for thought because this is not addressed in this particular Bill. It is addressed somewhere else in the code. I believe that we should also be mindful that if we criminalise it, what are we saying about access to sexual reproductive health like what Dr. Labode said because this will not be criminal. These boys and girls, whether we like it or not, indulge. When they indulge, because it is now criminalised, they will not be able to access sexual reproductive health. We must also be mindful that these young children also have rights that we also need to protect. So, I think when we come to the relevant Act, we should truly look into those issues before we clamour for that. Marriage per se comes with certain responsibilities. That is why we agree that the age of marriage should be 18. So, besides the issues of having sex, in marriage there are several commitments that come with it and we agree that it should be 18. To try to criminalise young people, 16 and above, I think we would have taken the law too far. Those are issues of morality that we can deal with within our families.
Madam Speaker, the Committee recommended that the application of the principles in the Matrimonial Causes Act relating to the distribution of property on divorce should be explicitly provided to
apply in unregistered customary law unions. The Matrimonial Causes Act in its current format only recognises the civil marriages when it comes to property dissolution.
Clause 5 of the Bill which provides for equality of marriages seeks to address the gap provided by the existing law of discriminating customary married spouses when it comes to property sharing upon dissolution of marriage. It should be noted that the Bill encourages people.
HON. TOFFA: Point of order Madam Speaker Ma’am.
THE HON. DEPUTY SPEAKER: What is your point of order,
HON. TOFFA: I am sorry to interrupt the Hon. Minister. Madam
Speaker Ma’am, I am concerned that we are now bringing mealie-meal into Parliament like it is a supermarket – [HON. MEMBERS: Inaudible interjections.] –
THE HON. DEPUTY SPEAKER: Order Hon. Members. Please
may you take your seats! Hon. Member in a red jacket, please take your seat. Hon. Chinotimba, did you bring the mealie-meal?
*HON. CHINOTIMBA: Thank you Madam Speaker. I have decided that in my constituency as an Hon. Member of Parliament, I should assist people in giving them mealie meal and I now aim at grinding mealie-meal. My father is called Bhuruwayo and I have branded the mealie-meal as Bhuruwayo. Bulawayo is spelt differently, so my company is called Bhuruwayo Milling Company, it is producing Bhuruwayo Roller Meal and I have brought to this House samples.
So, my point of privilege was that as Hon. Members, we should not just be mere Members of Parliament, so I am going to give a 10kg bag of mealie-meal to the Hon. Speaker –[HON. MEMBERS: Inaudible interjections.]- I will also give the same to the Minister of Justice, Legal and Parliamentary Affairs, Hon. Ziyambi and the Clerk of Parliament, Mr. Chokuda. This is to show that this is what we do as we assist our people and they should also do the same. I thank you – [Hear, hear.]- *THE HON. DEPUTY SPEAKER: It is true Hon. Chinotimba that we are all aware that mealie-meal is now a hard commodity to come by but you should have gone to the Speaker’s office as well as the respective people’s offices that you have given this mealie-meal and not bringing it to this House. We are so grateful that you have given us mealie-meal but in future, please take it to the respective people’s offices.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon.
Speaker. I want to thank Hon. Chinotimba – [HON. MEMBERS:
THE HON. DEPUTY SPEAKER: Order, order! Take your seats
HON. ZIYAMBI: Madam Speaker, the Committee recommended
that the Bill must not make all chiefs marriage officers by default.
Instead, the Minister…
*HON. J. CHIDAKWA: On a point of order! Madam Speaker, by
the same token, I am into the business of selling cellphones, so in future when I bring my phones here and give one to you, you should allow me to do so because precedence has been set by allowing Hon. Chinotimba to bring his mealie-meal into the Chamber and distributing it to you and the others.
HON. ZIYAMBI: The Committee was concerned about a blanket
approval of all chiefs as marriage officers. I take note of their recommendation. I think we can make sure it does not become automatic that all chiefs are marriage officers but some form of training is given so that this can be realised.
The Committee also recommended that Clause 11 must be amended for inclusion of every Ambassador, Consular-General to be authorised to be marriage officers in countries that they are a credited. I think it is a recommendation that is well received.
The other recommendation pertained to the digitalisation of the
Marriage Registry. I think this can be addressed in the regulations so that it can be given effect to. The Committee also recommended that it should be established whether marriages should be ‘in community of or out of community of property’ which is the current position according to the Married Persons Property Act.
Madam Speaker, concerning this; all marriages in Zimbabwe are
‘out of community of property’ unless the parties enter into anti-mutual contract prior to the marriage and this is in accordance with the Marriged Persons Act. So, the marriage regime in terms of property is well defined in our law – [HON. MEMBERS: Inaudible interjection.]
THE HON. DEPUTY SPEAKER: Order, order! The Hon. Speaker, Adv Mudenda, has earlier on said that as Hon. Members, you should respect and honour yourselves that you do not make noise in this House. So, if you continue like this, it just means that you do not respect yourselves as Hon. Members.
HON. ZIYAMBI: I now turn to the recommendations by the
Committee pertaining to Clause 40, which has caused a lot of debate.
The Committee was of the view that because there has been a lot of contestation, debate and controversy around this Clause, we must remove it from the Bill. I want to thank all the Hon. Members that have debated and I must say that from the beginning, the intention was to protect women in scenarios where they can be taken advantage of.
Clause 40 was meant to address a lacuna on property sharing of spouses, not only in civil marriages as the case in the Matrimonial Causes Act but also the majority of spouses that are in unregistered customarily law unions. I just want to say that this Clause at any stage never permitted small houses and it was extremely disappointing that there was a wrong reading of the Clause to mean that it authorised small houses.
However, I must add that I am very happy that we have robust debate and there are some who have realised that perhaps we might need to relook at it at the Committee Stage and try to find a way that can accommodate both views. I remember at some stage, the Women Lawyers Association came to visit my office, some of them were angry about the Clause but after discussing with them, they agreed that it was not a very bad Clause. I want to thank the Hon. Members; Hon. Maphosa had a very compelling argument that we should keep this Clause and I also want to thank her for the research that she did.
What we said as the Executive, just to respond to Hon.
Misihairabwi-Mushonga was the context of the Executive in saying let us withdraw it is, having discussed here in Parliament and if the majority view is that we do not want it. We withdraw it and allow future generations to have the same thinking to enact it. That was the position, but as legislators I think we can propose a way of ensuring that we deal with it appropriately. I tend to agree that we need to look at it holistically.
There are certain men Madam Speaker, who manage to deceive a woman to believe that they are not married and set up a separate home divorced from the other house, and have property there. Like what Hon. Misihairabwi-Mushonga says, when people are in love they do certain stupid things. Perhaps the woman is the one with very brilliant ideas.
She is the one bringing a lot of money but because she is staying with this man that she calls a husband, they buy property and register in the husband’s name. The problem starts when the husband wants to migrate and suddenly he says I am married to so and so, and I am going with all these things.
These are the issues that we want addressed by this Bill to say that if you were living together and this household was known as belonging to the two of you, upon dissolution when you decide to go apart, the provisions of the Matrimonial Causes Act must apply as if you were married in terms of sharing the property. However, it did not say that it is authorising the unions. I think that is what clouded a lot of people and they decided that it was a bad clause. It is not this woman who forced this man to go and have this other marriage and this woman who found herself in this position, it was not out of her own making, but circumstances dictated that it should happened. Surely, should she lose her property because she was not married? This is what we are trying to address.
I take note of the recommendation by the Committee in terms of the repeal of Section 79 of the Code in terms of wilful transmission of HIV. I was asked in this august House what we are doing in terms of this clause and I had promised that I would put up a word that we amend the Code through the Marriages Bill so that we do away with the clause that dealt with wilful transmission of HIV.
I want to applaud the Hon. Members who debated. Indeed, what has been happening like what the Hon. Members have been debating is a pregnant woman, because of our treatment regimes is now compulsory for them to be tested for HIV. She goes to an antenatal clinic she is tested. She goes home and tells the husband I am positive. The husband rushes to the police station and reports the woman but it is the husband who may have brought the HIV. Also the stigma in terms of fighting HIV/AIDS worldwide, the trend is that criminalising it this way does not remove the stigma and does not help in fighting HIV/AIDS. I want to thank the Committee for supporting this and I think we will proceed.
The Committee recommended that the Minister of Justice must compile a report annually for presentation to Parliament on the progress made in implementation of the provisions of this Act. I think this recommendation is well received and I do not see any problem with it.
I now turn to responses on some of the issues raised by Hon. Members. Hon. Mushoriwa raised that the Bill does not put customary and civil marriages at the same level. I think Hon. Mushoriwa had not read the Bill correctly. Exactly what he is saying it does not do that is what it is now doing. He also raised that when chiefs solemnise marriages, lobola should be a requirement. Hon. Speaker, lobola is not a requirement for registration of certain marriages because of originality of such marriage. Also Zimbabwe embraces different cultures which do not believe in payment of lobola. However, let me say that the reason why our chiefs will allow them to be marriage officers because of the customary marriages that they administer. Ordinarily, in our communities when chiefs become marriage officers, they insist on this because it is our custom so it is taken care of because of our customary practises.
Hon. Karenyi submitted that there should be a provision that if we worked for assets together, we should share them equally. Property sharing after dissolution of marriages, like I said before is addressed by the Married Persons’ Act and the Matrimonial Causes Act. Hence, the reason why in clause 40 we wanted to invoke the provisions of the Matrimonial Causes Act if you stayed together as husband and wife for the purposes of equitable distribution of property.
Hon. Mamombe raised the fact that if the Bill is harmonising marriage laws, it should consolidate all relevant laws. The Bill seeks to harmonise customary law and civil marriages and not all laws. This Bill is simply harmonising the marriage laws. It will be another exercise if we are to look at other laws. She also raised the issue that the Bill does not address the issue of guardianship and I must add again that we have a separate law that deals with that.
Hon. Zengeya submitted that women who are customarily married to men who have civil marriages should be protected by the law in terms of inheritance upon death of the husband. Being in these two different marriages is a criminal offense currently known as bigamy. However, what Hon. Mushoriwa suggested that the headmen should be marriage officers in areas where chiefs preside over large geographical areas. The view is that we do not have shortage of marriage officers since we also have religious leaders who are marriage officers. Magistrates are marriage officers and other designated marriage officers.
Hon. Speaker, Hon. Ndlovu stated that people who cause under aged children to marry should be arrested and prosecuted. Again in the Bill, Clause 3 criminalises marrying an under aged child. He also submitted that inheritance law should be consolidated with the Marriages Bill. I answered that this is in a separate Bill. Hon. Biti submitted that we need one consolidated marriage and child’s rights law which covers property rights, succession and rights of children. I must say we have separate legislation. We do not have consolidated legislation like he is suggesting. Perhaps it is something we can discuss going forward but the thinking was we want to consolidate our marriage laws so that we have all our marriage regimes under one law. At the moment we have separate laws for inheritance succession and the property regime.
Again he mentioned that we should have created two marriages in
Section 5, that is a monogamous marriage which is equivalent of the old Marriages Act Section 5.1.1 and polygamous marriage which is equivalent of the African Marriages Act. Madam Speaker, Clause 5 does address the two types of marriages. What we did is we just took the two marriages, consolidated them under one Act and they have different subsections. We have a section for the monogamous and also for the polygamous marriage under one Bill. Hon. Biti suggested that the law should be that all marriages in Zimbabwe should be in community of property as men are disposing assets during subsistence of marriages.
Madam Speaker, marriages in Zimbabwe currently the property regime is under a different Act. His suggestion is well received but it is not covered in this Bill, it is covered in another Bill.
Clause 6 of the Bill states that the parties to any marriages have equal rights and obligations during the subsistence and dissolution of the marriage. This especially addresses wives who were previously regarded as having no legal capacity and were treated as the perpetual minors. Equality at dissolution of marriage must be understood within the context of the property regime governing the marriage concerned. Again parties are free to have a pre-marital contract to choose their property regime. Madam Speaker, Hon. Gonese raised that where people contracted a marriage outside Zimbabwe, where degrees of relationship in terms of consanguinity are not similar to our law, does that mean that marriage would be invalid in their countries of origin but valid in Zimbabwe or vice versa? Madam Speaker, in response to this my submission is that applicability of law will be based on the laws of country of origin.
I want also to acknowledge the contribution by Hon. Labode. She recommended that once we move the age of consent for sex to 18, we need to also have a provision that allows 14, 15, 16 and 17 year-olds who are sexually active to assess health services so that they can access family planning. Like I explained before, we need to discuss this issue when we deal with the code and it is not as simple as the people wanted to put it. Madam Speaker I think these are my responses to the Marriages Bill and I want to thank the Hon. Members and move that the Bill be now read a second time. I thank you.
Motion put and agreed to.
Bill read a second time.
Committee Stage: Wednesday, 11th March, 2020.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Orders of the Day, Numbers 2 and 3 be stood over until Order of the Day Number 4 has been disposed of.
Motion put and agreed to.
ZIMBABWE MEDIA COMMISSION BILL [H.B. 8, 2019]
Forth Order read: Second Reading: Zimbabwe Media
Commission Bill [H.B. 8, 2019].
Question again proposed.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam
Speaker, I want to thank you. I present my second reading speech on Zimbabwe Media Commission Bill. The Media plays a critical role in the development of a country and its citizens, Zimbabwe’s mass media, the Press, radio, television and other multimedia are important source of information. The media provides news and analysis about what is happening inside the country and beyond our borders. It is within this background that I bring the Zimbabwe Media Commission Bill for your consideration. The Zimbabwe Media Commission Bill is a piece of legislation proposed that intends to address Government’s reforms in the media sector. The Bill, Madam Speaker is one of the three media Bills which intends to replace the Access to Information and Protection of Privacy Act, commonly referred to as AIPPA.
The Bill aims to regulate the Zimbabwe Media Commission and provides for matters related to its establishment. Madam Speaker, the Zimbabwe Media Commission Bill makes additional provisions with regard to the Zimbabwe Media Commission provided for in Section 248 of the Constitution and whose functions are detailed in Section 249 of the Constitution. The objective of the Bill is to protect the rights to the freedom of expression and the freedom of the media granted under Section 61 of the Constitution. The Bill also seeks to extensively amend the Access to Information and Protection of Privacy Act by repealing all provisions relating to the regulation and control of the media. The Bill must also be read with and subject to various provisions of the Constitution such as Part I of Chapter 12, relating to the nature of independent commissions supporting democracy, of which the ZMC is one; Part I of Chapter 18 with respect to general and supplementary provisions relating to all constitutional commissions and Section 17 relating to gender balance. These aspects have not been restated in this
Bill. The Bill elaborates on the functioning of the Zimbabwe Media Commission. For ease of reference Madam Speaker, the relevant provisions of Chapter 12 of the Constitution relating to the establishment and functions of the commission are set out at full length as a preamble to the Bill.
So too is Section 61 of the Constitution which sets out the right to freedom of expression and freedom of the media. As I mentioned earlier the Bill seeks to give effect to Sections 61, 248 and 249 of the Constitution. Section 61 of the Constitution speaks on the right to freedom of expression and freedom of the media, while Section 248 and 249 set out the establishment, composition and functions of the
Zimbabwe Media Commission. The Bill also seeks to regularise the establishment of ZMC. Once set into law, the Bill will also replace, as I said before AIPPA that deals with the Zimbabwe Media Commission and its functions.
Madam Speaker, the importance of media of media laws cannot be overstated. Media contributes to improved governance of a nation and therefore I urge you to peruse the provisions of this Bill and as we debate on it, to pass this law because it is a very progressive law to our democratic dispensation. I thank you Madam Speaker and move that this Bill be read a second time. I thank you.
HON. CHIKWINYA: Thank you Madam Speaker. I hereby present on behalf of the Committee and on behalf of my Chairperson Hon. P. Dube, the report of the Committee on the Zimbabwe Media Commission Bill that was prepared after wide consultation with all stakeholders in the media sector.
Madam Speaker, by way of introduction, the Zimbabwe Media
Commission Bill (H.B. 8, 2019) was gazetted on 9th August, 2019 as one of the three media Bills which intend to replace the Access to Information and Protection of Privacy Act [Chapter 10:27] (commonly referred to as “AIPPA”). Consequently, the Bill was referred to the Committee on Information, Media and Broadcasting Services requiring the Committee to discharge its scrutinising function, so as to make essential recommendations. The Bill intends to regulate the Zimbabwe Media Commission (ZMC) and provides for matters incidental to its establishment.
The Portfolio Committee on Information, Media and
Broadcasting Services conducted public consultations on the
Zimbabwe Media Commission Bill (HB.8.2019) in terms of Section
141 of the Constitution. The public consultations were conducted from
14 to 18 October, 2019. The Committee covered areas in Harare,
Mutare, Masvingo, Bulawayo and Gweru.
The public consultations were attended to by a wider cross section of the society; namely youths, pensioners, business people, representatives from different media organisations, Government officials, resident associations, and the general public. The Committee expresses its heartfelt gratitude to all stakeholders who contributed at the public consultations and those who made written submissions.
SUBMISSIONS ON THE ZIMBABWE MEDIA
COMMISSION BILL 3.1 MEMORANDUM
Stakeholders highlighted that the suggestion in the Memorandum section to the effect that “the Bill will extensively amend the Access to
Information and Protection of Privacy Act [Chapter 10:27],” is confusing because the Freedom of Information Bill specifically states that the Freedom of Information Bill will repeal the Access to Information and Protection of Privacy Act [Chapter 10:27]. It was recommended that there should be no reference to the amendment of AIPPA. If there should be any reference to that old Act of Parliament, such reference should relate to the repeal of the statute.
CLAUSE 2: INTERPRETATION
Stakeholders recommended that the definition of a media practitioner should be broad with inclusion of all media practitioners; that is content producers, artists, and camera persons and citizen journalists. There is need for the Bill to differentiate in terms of media practitioners as other stakeholders attributed that a difference exists between a broadcaster and a content producer, thus the term should be clearly defined.
Stakeholders were of the view that the Bill should adopt the definition of a journalist from AIPPA which defines it as a person who gathers, collects, edits or prepares news, stories, materials and information for a mass media service, whether as an employee of the service or as a freelancer. Others recommended that the definition of a professional journalist reads as, ‘any person who has attended a school of journalism recognised by the profession or any other person who possesses a university degree or equivalent, has undergone two years of practical training in a newsroom or newsroom setting and is regularly employed to gather, process and disseminate information, and earns his/her living essentially from editorial work’. Stakeholders highlighted the need for a definition of an interested person and the definition should ascribe to section 85 of the Constitution which speaks to fundamental human rights and freedoms.
CLAUSE 3: DISCHARGE OF FUNCTIONS BY
This clause provides that members of the Commission other than the Chairperson shall not be full time employees of the Commission. Stakeholders informed the Committee that the Bill is silent on the term of office of the chairpersons of the Commission. They suggested that there should be clearly set time for the term of office to observe good governance and avoid abuse of office through corruption. It was further recommended that the provision of a full time Chairperson be viewed in relation to the Public Entities Corporate Governance Act on the separation and clarity of roles between the Chairperson and the accounting officer who is the Commission Secretary. Other stakeholders suggested that the term limit for commissioners be two years.
CLAUSE 6: DEPUTY CHAIRPERSON OF COMMISSION
Stakeholders highlighted that the Bill is silent on gender apart from just making reference to the fact that the deputy of the Chairperson of the Commission should be the opposite gender. The Bill should emphasize and make reference to the constitutional provision in terms of gender by equalising gender composition in the Commission. Other stakeholders were of the view that the appointment of the Deputy Chairperson should remain as stated in the Bill as the consultation is done with the Committee guided by the Committee on Standing Rules and Orders.
CLAUSE 7: SECRETARY AND OTHER STAFF OF
COMMISSION AND EXPERTS
Madam Speaker, you should realise that I am purely relating to the views as gathered. The recommendations from the Committee will come just after. Clause 7 provides for the appointment by the Commission of an Executive Secretary and other staff of the
Commission to run the affairs of the Commission but appointments must be made with the approval of the Minister, the Minister responsible for the Civil Service and the Minister responsible for Finance. Stakeholders highlighted that this is against the principle of corporate governance where the Commission has powers to appoint its own staff.
Stakeholders made reference to Section 234 (3) and 235 of the Constitution of Zimbabwe which stipulates that Commissions must be independent and should not be subject to the direction and control of any one and no person may interfere with the functioning of the independent commissions. Stakeholders made emphasis on the violation of these sections by involvement of these Ministers in appointment of the Secretary and recommended that they must not be involved.
TERM OF OFFICE FOR COMMISSIONERS
The Committee was informed that the tenure of office of
Commissioners is not spelt out in this Bill. Stakeholders made reference to Section 320 (i) of the Constitution of Zimbabwe which spells out the guidelines in terms of appointment and terms of all Commissions in Chapter 12. The section stipulates that every member of the Commission is appointed for a term of five years renewable for one term only. It was recommended that the Bill ascribes to this section.
QUALIFICATION OF COMMISSIONERS
The Committee was informed that the Bill should clearly spell out qualifications of people to be appointed to the Commission. Such qualifications should include their knowledge in the media as they will be dealing with media industry issues. Stakeholders were concerned that persons without any knowledge of media will find themselves as Commissioners.
CLAUSE 8: POWERS TO INVESTIGATE
The Bill gives the Commissioners the power to investigate issues when someone has not complained. Stakeholders highlighted that Commissioners should start investigation after someone has tendered a complaint. Other stakeholders recommended that the clause should be expunged as it gives excess power to the Commission which is prone to abuse. It was suggested that another board such as the Voluntary Media Council in Zimbabwe should be given the powers to investigate, following specific identified complaints. Additionally, the Committee was advised that Clause 8 (3) limits the number of people who can bring in complaints, thus violating Section 85 of the Constitution which speaks to fundamental human rights and freedoms.
CLAUSE 10: CONDUCT OF INVESTIGATION
The Committee was informed that Section 10 (1) of the Bill stipulates that the Commission in its discretion may conduct an investigation, hearing or inquiry in the form of public or closed proceedings. Stakeholders expressed dissatisfaction with the conduct of an investigation on the discretion of the Commission. They recommended that investigation should be commenced following a complaint from members of the public.
Stakeholders recommended that Clause 10 (3) should be redrafted by stating the powers, rights and privileges of the Commission of Inquiry. Others recommended that the section should fall away as it makes people swear; it adjudicates in a manner which is not related to section 61 of the Constitution on freedom of expression and media. Sections 9 to 18 of Commissions of Inquiry Act give excess power to the Commission and are open to abuse.
In Clause 10 (4), stakeholders highlighted that police have no role in investigating any issues pertaining to professional journalism. It was recommended that the Bill completely removes the section that unleashes the services of police in cases where journalists will have carried themselves in ways that could be in contravention of the provisions in the Bill. Other stakeholders informed the Committee that police should be allowed to investigate media practitioners because they will be fueling despondency in the community and they are the law enforcement agents. It was suggested that when dealing with this issue, the Committee should take into consideration Section 61 (5) (a) to (d) of the Constitution of Zimbabwe.
The Committee was informed that the issuance of a certificate be done through the court of law not through the Commission. It was highlighted that the Minister can make an application for issuance of the certificate.
CLAUSE 17: FUNDS OF COMMISSION
In Clause 17 (b), the Bill states that the Commission shall accept donations, grants or bequests after it has consulted the Minister; this was highlighted as problematic as it gives the Minister the power to redirect a Commission which is supposed to be independent. It was recommended that the Minister should not be involved in the business of the Commission.
Additionally, it was highlighted that Clause 17 omits the establishment of the Media Fund and it was recommended that the Bill should include the establishment of the fund to bail out struggling media houses. The funding should come from taxes, accreditation fees and levies. Other stakeholders recommended that there should be a media fund for students who are on attachment. This will help through allowances that will cushion them in their welfare.
CLAUSE 18: COMMISSION REPORT TO THE MINISTER
Stakeholders were of the view that the submission of a report to the
Minister should be for the purpose of its tabling before Parliament. The Bill provides for the submission of financial reports and leaves out reports on the activities of the Commission. However, other stakeholders highlighted that the Commission should report directly to Parliament through the relevant Portfolio Committee and the Minister should not be involved as it affects the independence of the Commission.
CLAUSE 21: REGULATIONS
The Bill does not provide for the development of the media industry and how it should be regulated. The Bill is silent on the provision for the registration and accreditation of journalists. It was recommended that the Bill provides for the registration of mass media services as well as accreditation of journalists.
Stakeholders highlighted that the Bill is silent on the issue of coreregulation which by the way is an agreed position from stakeholders under the Media Alliance in Zimbabwe (MAZ) umbrella. The Cabinet principles which were signed by Cabinet and the Information and Media Panel of Inquiry (IMPI) Report done on 2013, also spoke to the issue of core-regulation. In this regard, stakeholders recommended that coreregulation whereby ZMC will exist alongside a professional body be included in the Bill and is clearly spelt out. The Committee was informed that regulation must take citizen’s interest, ensure media autonomy and editorial independence. Thus, ZMC should be concerned with accreditation and administrative issues but the issue of professional conduct must be left to another body such as the Voluntary Media Council which a number of media practitioners subscribe to.
Clause 21 also gives the Minister the power to draft and administer regulations. It was recommended that the Minister must be discharged there to avoid impingement on independence of the Commission
because the executive through the involvement of the Minister will be unconstitutional and ministers are appointed from political parties.
The Committee was informed that Clause 21 (3) stipulates that regulation could provide for penalties and fines that include imprisonment to be imposed; this was referred as tantamount to going back to AIPPA. The Bill is silent on the role of the ZMC in promoting the right enshrined in Sections 61 and 62 of the Constitution. It was recommended that some provisions be revised for the Commission to play an active role in monitoring and taking the lead in ensuring the safety and security of media practitioners.
The Committee observed that there are a number of Bills repealing
Access to Information and Protection of Privacy Act (AIPPA), thus the
Zimbabwe Media Commission Bill together with the Freedom of
Information Bill should repeal AIPPA.
The Committee was in agreement with the submission from the public that the definition for media practitioners should be broadened. However, the Committee commended that the definition should not include citizen journalists as it is difficult to regulate the practices of citizen journalists.
Under Clause 7, the Committee was in support of the submission that employment for the Secretary and other staff of the Commission should remain solely with the Commission so as to comply with Section 234 and 235 (3) of the Constitution of Zimbabwe.
Regarding the qualification of Commissioners, the Committee was of the view that the provision of section 248 (2) of the Constitution of Zimbabwe which stipulates that members of the ZMC must be chosen for their integrity, their competence in administration, their knowledge and understanding of human rights issues, and best practices in media matters is sufficient in addressing the concerns of the stakeholders.
In Clause 2,1 the Committee highlighted that there must be a clause that create a co-regulation framework actualised through the Media Council.
The Committee makes the following recommendations:
That in Clause 2, the definition for a media practitioner should be broadened to include artists, content creators and camera persons and excludes citizen journalists;
That in Clause 3, the term of office for the Chairperson should be five years and renewable once;
That in Clause 7, appointment of the Secretary and other staff of Commission should solely remain the duty of the Commission and should not be subject to the direction and control of anyone;
That the Bill should ascribe to section 248 (2) of Constitution of
Zimbabwe regarding qualification of Commissioners;
That in Clause 8, the Commission on its own motion may instruct board of established media practitioners to investigate or inquire into any action on the part of any person that constitutes, or is likely to result in a violation of any of the rights protected under section 61 of the
That in Clause 8 (3), the Bill should not limit the number of people who can bring in complaints so as to comply with section 85 (1) of the
Constitution of Zimbabwe;
That Clause 10 (3 and 4) relating to the conduct of investigation in accordance with section 9 to 18 of the Commission of Inquiry Act and involvement of police during investigation respectively should be expunged as it adjudicates in a manner which is not related to section 61 of the Constitution of Zimbabwe;
That in Clause 10 (8), the Minister should approach the High Court if the information is prejudicial to national defence or economic interests;
That in Clause 17, the Commission should accept any donations, grants or bequests made by any person or organisation with the approval of the Parliament of Zimbabwe;
That Zimbabwe Media Development Fund should be formed to address issues of community media development, capacity building, trainings and technology issues administered by the Commission;
That in Clause 18, reports should be submitted annually to
Parliament through the Minister responsible;
That there should be a clause that creates a co-regulation framework actualised through the Media Council;
That in Clause 21 (1), the regulations should be drafted by the
Commission itself with the approval of Parliament of Zimbabwe; and
That in Clause 21 (3), the Bill should remove imprisonment imposed for contraventions of the regulations, but if it is a criminal offence, it should be referred to the relevant institution.
It is commendable that the Ministry has taken steps to repeal AIPPA, and to replace old unpopular law with new media laws such as the Zimbabwe Media Commission Bill. However, there remains other issues related to the existence and role of a Media Council that must be given abrupt attention to bring the Bill in line with sections 61 and 62 of the Constitution. The Ministry is commended to immediately work on the law that will stipulate the establishment of the Media Council. The recommendations proffered above could assist the current Bill in achieving its stated objectives and the Committee will bring amendments during Committee Stage.
HON. CHIKWINYA: Madam Chair, the conclusion given by the
Hon. Minister in his first submission of this Bill speaks to the importance of media freedom. As I sit, Hon. Chair, let me highlight to you that currently, Zimbabwe has 19 laws that directly or indirectly affect media practice. I implore upon the Hon. Minister that the commitment that he was doing during the Marriages Bill, where it has been discovered that there are various other laws that have a direct impact on a marriage set up; we need to consolidate all those laws and make them into one consolidated piece of legislation.
The same approach must be taken with regards to media legislation where we have 19 laws which are currently impacting on the conduct and professional work ethic of a journalist. We need to consolidate all those laws for us to have a true media reform process. To have these piecemeal reform processes will take us time and make us move in circles, we will not achieve our intended objectives. This will be presented again at Committee Stage; this is the Report of your Committee. I thank you.
HON. K. PARADZA: Madam Speaker, we are dealing with a
profession that has been under siege for the past 18 years. This Parliament is going to go down in history as the Parliament which is going to change the media landscape in this country. I am happy to be part of that Parliament.
The President himself has volunteered to and therefore, as Members of Parliament, who are we to say something which is different from this. The media is regarded as the fourth State so all progressive governments and countries across the world have actually stopped regulating the media. For example, the first amendment of the American
Constitution says “Congress shall make no law that infringes on media freedom”. This is well captured in our Constitution as well that we must not temper with freedom of the media and of the press, that is in Sections 61 and 62 of the Constitution.
I was part of the Committee that went right round the country to seek opinion of our citizens. Our citizens want a media that is free, a media that is not criminalised, which is able to inform, educate and entertain our citizens. That is basically the role of the media.
The other issues, just to sum up to what Hon. Chikwinya has said, the media in this country has tried to self regulate for the past 18 years but this has not worked. So what the people out there and even the stakeholders have told us is that we must go for co-regulation, which is very important and Government is going to be included in that. The Zimbabwe Media Commission Bill is going to create the media council, which is the one which is going to regulate the media. This is the trend all over the world.
We were dispatched to Kenya by this Parliament, Hon. Sibanda, myself and Hon. Chikwinya and this is working very well in Kenya. The Kenyan model is very clear and not only that, the government also is funding this media council and this is what we want. We want the Government to fund this because we want a media which is vibrant. The media which is going to have capacity to inform the people of what Government programmes are and what the people are doing and so forth. Without a free media, we will not go anywhere. We want our media to be free, give them freedom. Even in our discussions with the President, he is very clear; give the media all the freedom they need. So, let us give them that freedom. These reforms are not conditional, you must take note of that and I am happy that His Excellency is with us on that one.
Madam Speaker, we must create an employment council for the media industry. For the past 40 years, we did not have an employment council for the media industry. So, it is disjointed and so forth, so we think that with this media council, apart from dealing with the ethics and also the code of conduct, they will also create employment council for the media council.
Part of the issues why we are under sanctions is because of this law, this Access to Information and Protection of Privacy Act which criminalises the profession of journalism. It is good that this has come at a time when we are going to repeal this law and also we have those two laws in place where the media is going to be free.
Madam Speaker, the other issue which is in this Bill, which must be scrapped, is to involve the police. We must not involve the police in this profession, what for? It is just like what we were talking about the Marriages Bill where if you infect somebody with HIV and so forth you do not have to be criminalised. Why should you criminalise this profession?
Progressive Governments all over the world have stopped regulating the media and the sooner we realise that the better because right now whether we like it or not, a person with a cell-phone is there. He is the reporter, editor and the distributor of news. It is no longer what it used to be. The traditional media is gone. That alone must inform us of how we must proceed. I thought I must add my voice to that including especially co-regulation and decriminalisation of the media and also funding of the media council. Those are the three major issues. I am happy about that. Thank you very much Hon. Speaker for giving me the opportunity to say those few words. I am passionate about that Hon. Speaker because I am a journalist. I want the media in this country to be free and not to be controlled. Government has no role in controlling the media. It must be free.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the
debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 11th March, 2020.
ANNOUNCEMENT BY THE TEMPORARY SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE
THE TEMPORARY SPEAKER (HON. MAVETERA): I have
received a non-adverse report from the Parliamentary Legal Committee on the Freedom of Information Bill [H. B. 6A, 2019].
Consideration Stage: With leave, forthwith.
FREEDOM OF INFORMATION BILL [H. B. 6A, 2019]
Amendments to Clauses 2, 10, 13 and 17 put and agreed to
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
FREEDOM OF INFORMATION BILL [H. B. 6A, 2019]
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the
Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
ANNOUNCEMENT BY THE TEMPORARY SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE
THE TEMPORARY SPEAKER: I have to announce to the
House that I have received a non-adverse report from the Parliamentary Legal Committee on the International Treaties Bill [H. B. 10A, 2019].
Consideration Stage: With leave, forthwith.
INTERNATIONAL TREATIES BILL [H. B. 10A, 2019]
Amendment to Clause 2 put and agreed to.
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
INTERNATIONAL TREATIES BILL [H. B. 10A, 2019]
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the
Bill be now read the third time.
Motion put and agreed to.
Bill read the third time.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House
adjourned at Three Minutes past Five o’clock p.m.