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NATIONAL ASSEMBLY HANSARD 12 JULY 2022 VOL 48 NO 58
PARLIAMENT OF ZIMBABWE
Tuesday, 12th July, 2022.
The National Assembly met at a Quarter-past Two O’clock p.m.
(THE HON DEPUTY SPEAKER in the Chair)
ANNOUNCEMENTS BY THE HON. DEPUTY SPEAKER
PETITIONS RECEIVED FROM THE BRAVE LITTLE HEARTS, MR. S. MUYAMBI, NEW ZIANA WORKERS AND THE EDUCATION UNION OF ZIMBABWE
THE HON. DEPUTY SPEAKER: I have to inform the House that on Tuesday, 14th June 2022, Parliament received a petition from the Brave Little Hearts of Zimbabwe requesting Parliament to compel the Government through the Ministries of Health and Child Care and Finance and Economic Development to equip Parirenyatwa and Mpilo Hospitals to enable the hospitals to offer pediatric heart surgical services, among other things aimed at assisting children with heart conditions.
I also have to inform the House that on Friday, 24th June 2022, Parliament received a petition from Mr. S. Muyambi requesting Parliament to compel the Portfolio Committee on Defence, Home Affairs and Security Services to postpone the elections scheduled for 2023 and effect legal reforms to the Electoral Act.
The petition did not meet the requirements stipulated in the Standing Rules and Orders and the petition was deemed inadmissible. The petitioner has since been informed accordingly.
I further have to inform the House that on Monday, 4th July 2022, Parliament received a petition from the New Ziana workers beseeching Parliament to intervene and ensure that the Ministry of Information, Publicity and Broadcasting Services crafts a viable turnaround strategy for New Ziana to address the plight of the workers and to assist New Ziana to get funding from Treasury to enable it to function.
The petitioners did not meet the requirements stipulated in the Standing Rules and Orders and the petition was deemed inadmissible. The petitioners have since been informed accordingly.
Additionally, I have to inform the House that on Tuesday, 5th July, 2022, Parliament received a petition from the Education Union of Zimbabwe, beseeching Parliament to intervene and have teachers on suspension reinstated on the payroll for them to discharge their duties effectively.
The petitioners did not meet the requirements stipulated in the Standing Rules and Orders and the petition was deemed inadmissible. The petitioners have since been informed accordingly.
HON. MATHE: Thank you Madam Speaker, on a point of national interest. Please allow me to notify and inform this Parliament of a successful election that Zimbabwe had in the Pan African Parliament (PAP) where Zimbabwe, being part of the Southern Caucus and the candidate being from Zimbabwe and none other than Hon. Sen. Chief Fortune Zephaniah Charumbira won the Pan African Parliament presidential elections.
We say congratulations to the Southern Caucus, congratulations to Zimbabwe, congratulations to His Excellency the President of the Republic of Zimbabwe for having one of his being a President of PAP, leading and running 54 countries and it is Zimbabwe. Honestly, we are so happy as a country.
Allow me at the same time Madam Speaker, to inform this Parliament that in the Bureau which in our Zimbabwean context we say it is the Cabinet of the Pan African Parliament, in the Bureau of the Pan African Parliament, Zimbabwe also got a position of the Vice Chairperson of Education, Culture, Tourism and Human Resources and it is none other than the lady who is speaking, Hon. Stars Mathe.
Madam Speaker, on that again, we congratulate the Southern Caucus that chose Zimbabwe to be a part of this leadership. We congratulate Zimbabwe and congratulate His Excellency for having such positions coming from the country Zimbabwe. Finally Madam Speaker, let me inform this House that a young woman in this Parliament being an assistant in the Speaker’s Panel, Hon. Mavetera also got a position of Vice President of the Woman’s League and Young People in Pan African Parliament.
It was so amazing Madam Speaker. You will recall that this Parliament sent Mavetera for the first time to the Pan African Parliament but because she was coming from Zimbabwe and because she showed her intelligence; her capability just in a day or two, in a week when we arrived in the Pan African Parliament, they voted her to be the first Vice President of Women’s Caucus. Honestly, we are happy.
To the economy, it means a lot. It means that this country Zimbabwe will sit and lead in those portfolios. A lot will be done. Thank you very much Madam Speaker. We congratulate Zimbabwe and we congratulate all Hon. Members of Parliament here present. All Members from this Parliament whom we represented when we were out there are really congratulated. Thank you very much.
THE HON. DEPUTY SPEAKER: Thank you very much Hon. Mathe for informing us of what transpired at the Pan African Parliament and I would like to congratulate Hon. Sen. Chief Charumbira and all other Hon. Members in this Parliament and Southern Africa as a whole. Congratulations to you all. Thank you.
+HON. H. MGUNI: Thank you Madam Speaker. Following the downfall of rains which fell recently - the rains had a lot of wind and as a result in some places some ZESA poles fell down. Thereafter, there were children who touched the live wires on these poles which were down and these children from Mangwe were injured. After injury they were admitted at UBH in Bulawayo. ZESA even had personnel to cater for these children after the injuries. One of these children has since been amputated an arm and legs, one was discharged but is being attended to and is being ferried to hospital in a wheelbarrow.
We now request that the parents of these children be assisted so that they can have access to their children and that they can bath them and give them food. These are parents from a rural area, some are now saying they have since sold some beasts so that they can have resources to go and see their children in hospital.
When are these poles going to be put in their right positions? Again, as a result of the fall of these ZESA poles, the schools in the area are running without electricity. How are the schools going to be helped so that they can run properly? I thank you Madam Speaker.
*THE HON. DEPUTY SPEAKER: Thank you Hon. Mguni for the point of national interest you have raised but I ask you to present it as a question tomorrow during Question Time to the Minister responsible. Thank you.
HON. T. MLISWA: My point of national interest is that today is
Anti-corruption Day and I would want to urge and speak to the nation that indeed, the President is very clear on zero tolerance to corruption but we also have to play a part as a people. The President has set the tone. He cannot arrest and expose it but we have got to expose the corruption in all the institutions which are responsible for curbing corruption, they should play their role. Corruption indeed robs us all and I think indeed, we have suffered immensely as a result of illicit flows in terms of our own resources and also in terms of bad governance as exposed by the Auditor General’s office. As a result, it is important for us to take this seriously and ensure that we fight it so that we are able to prevent it. As much as we want to fight it, I think prevention is better than cure. We would like to work and thank the Zimbabwe Anti-Corruption Commission, ZRP, National Prosecuting Authority and Transparency International Zimbabwe in working with the APNAC Chapter of Zimbabwe as a collaborated effort in curbing corruption. I therefore urge Members of Parliament to raise this awareness in their constituencies because you represent people and a meeting without corruption on the agenda, be it exposing it or preventing it is not a meeting for the people.
Secondly Madam Speaker, it would not be proper for me as the only independent Member to congratulate Hon. Sen. Chief Charumbira for being elected the PAP President. Not only that, to also thank the Speaker and Parliament here for leading that campaign and many other positions which I see even my sister, Hon. Stars Mathe spoke about. My sister, let me beat the drums for you - boom boom. She did very well and we are very proud of what you stood for. Hon. Mavetera, very young and I think it is important that this sends a message out there to the world that Zimbabwe indeed has a policy of empowering young people. She has done well, but you must know that success breeds enemies too, especially within and not outside. So keep on keeping and I think you represent us all.
Finally, I want to thank your Chair and your position for giving us some money. We saw some lump sum amounts of monies but we did not know what they were for. Whether they were salary allowances or it was a kind of token of appreciation for what we have done - it is important for the administration of Parliament to tell us really what that money was for. I think we must appreciate that Members of Parliament have kind of lost track in terms of what belongs to them. So they do not know when money comes in, what it is for and so forth. I think an explanation would help us but ultimately, thank you so much. The Speaker said we would get something. Half a loaf is better than nothing, so I know it is pretty tough but at the same time we still urge you to find more for us. Thank you.
THE HON. DEPUTY SPEAKER: It is true the day is Anti-Corruption Day. We must all know that corruption destroys the nation, so we must shun corruption. We must all campaign against corruption. Thank you.
*HON. MUKAPIKO: I rise on a point of national interest and would like to talk about the challenges we are facing in our communities, which is the problem of drug abuse by children. Government discovered that drugs are being abused by youths and even young kids in Zimbabwe. The Government organised a Committee to carry out a research and take a close look about the issue of drug abuse. I would like the Committee to work with the Ministry of Home Affairs and Ministry of Education since that is also affecting young kids who are attending school. Currently in my constituency Redcliff, at Batanai High School, we lost three students who committed suicide during the past three months due to drug abuse. I am kindly asking if the Minister of Education can come to this august House to tell us what she needs to do to help so that we can put an end to drugs. More so, parents are crying for the Scripture Union Programme to be re-introduced in schools, maybe God will intervene.
*THE HON. DEPUTY SPEAKER: Truly, drugs have become a problem to our children and their future. I kindly advise you that since this august House is responsible for law making that we enact laws that criminalise those who are caught selling drugs to children be sentenced for a number of years in jail so that our children are protected from drug abuse because this is destroying our country.
With regards to the issue of having the Minister of Education bringing a Ministerial Statement, I am not getting how she is involved because the Ministry is mostly affected and on this issue she is not responsible for the Ministerial Statement.
Hon. Markham, Hon. Biti, Hon. Madzimure, Hon. Madhuku and Hon. Nduna having stood up on points of national interest.
THE HON. DEPUTY SPEAKER: I will give you time tomorrow.
HON. MARKHAM: To confirm Madam Speaker, you will give us time for points of national interest tomorrow irrespective of –
THE HON. DEPUTY SPEAKER: Yes.
HON. MARKHAM: Thank you.
NATIONAL SECURITY COUNCIL BILL [H. B. 2, 2022]
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI) on behalf of THE MINISTER OF DEFENCE AND WAR VETERANS AFFAIRS presented the National Security Council Bill [H.B. 2, 2022].
Bill read the first time.
Bill referred to the Parliamentary Legal Committee.
RESPONSE TO THE REPORT ON PUBLIC HEARINGS HELD BY THE PORTFOLIO COMMITTEE ON WOMEN’S AFFAIRS, COMMUNITY AND SMALL AND MEDIUM DEVELOPMENT ON THE MINIMUM MANDATORY SENTENCES FOR RAPE AND OTHER SEXUAL OFFENCES
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Speaker. I appreciate the Report of the Portfolio Committee on Women’s Affairs, Community and SME Development as well as the debate by Hon. Members of the House. I would like to acknowledge that the rape statistics as highlighted by the report are horrifying. The report referred to ZimStat 2016 statistics which indicates that 21 women are raped every day in Zimbabwe, translating to one woman being sexually abused every 75 minutes. Madam Speaker, women and girls now live in fear. Just last month, a suspect was arrested for rape and murder of more than 20 women. The Convention on the Elimination of all Forms of Discrimination Against Women and the Southern African Development Community Protocol on Gender and Development of which Zimbabwe is a part too, both call for State parties to make legislative measures to protect women and girls.
Madam Speaker, to deter would-be offenders, the report recommended reduction of time by the courts to decide on appropriate sentences and protect potential rape victims. The Constitution in Section 69 (1), guarantees the right to a fair and public trial within reasonable time before an independent and impartial court. Madam Speaker, the Constitution does not prescribe timelines within which cases must be decided, the reason being that cases differ and some cases take longer to conclude. The criminal procedure was designed to address different stages of a matter that guarantee that there is no miscarriage of justice. Any short corner in the procedure has a likely result of miscarriage of justice. Madam Speaker, Section 167 (a) of the Criminal Procedure and Evidence Act guards against unnecessary delays. The Act provides that a court before which criminal proceedings are pending, shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused, his or her legal representative, to a witness or other person concerned in the proceedings or to the public interest.
In consideration on whether any delay is unreasonable, the court shall consider all the circumstances of the case. The following are some of the circumstances listed in the Act that the court should consider: the extent of the delay, the reasons advanced for the delay, whether any person can be blamed for the delay, the seriousness extent or complexity of the charge or charges, any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings, the effect of the delay on the administration of justice and the adverse effect on the interest of the public or the victims in the event of the prosecution being stopped or discontinued.
Madam Speaker, if after the investigation, the court finds that the completion of the proceedings is being unduly delayed or that there has been an unreasonable delay in bringing the accused to trial or in completing the trial, the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it to prevent further delay or prejudice. Such orders include an order refusing further postponement of the proceedings, granting a postponement subject to such conditions as the court may determine, or that may be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.
Madam Speaker, the Judiciary has in-house mechanisms which guard against delays. The Judicial Service (Code of Ethics) Regulations, Statutory Instrument 107 of 2012 in Section 17, calls upon judicial officers to perform all judicial duties efficiently, fairly and with reasonable promptness. It goes further in Section 19 to provide that where a judgement is reserved to be delivered on notice, the judicial officer shall use his or her best efforts to ensure that such judgment is delivered within the next 90 days and except in unusual and exceptional circumstances, no judgment shall be delivered later than 180 days from the date when it is reserved. Failure to deliver judgments on time can be an issue of gross misconduct and a judge can be removed from office like what happened in the case of former Justice Ndewere.
The Judicial Service (Magistrates Code of Ethics) Regulations, Statutory Instrument 239 of 2019 in Section 17 also calls for reasonable promptness in execution of judicial duties. The regulations further in Section 19, provide that where a judgment is reserved to be delivered on notice, the judicial officer shall use his or her best efforts to ensure that such judgment is delivered within the next 30 days and except in unusual and exceptional circumstances, no judgment shall be delivered later than 60 days from the date when it is reserved. Violation of these rules Madam Speaker, constitute judicial misconduct or misbehaviour calling for disciplinary action.
Madam Speaker, in the report, the Committee mentioned that it was deeply concerned to receive reports that the trauma of the violation and seeing the offender back in society within a short period of time has long term consequences on the victim, a situation that can only be addressed through long deterrent and minimum mandatory sentencing. The report Madam Speaker, recommended amendment to the Criminal Law (Codification and Reform Act [Chapter 9:23] by ensuring that it provides for a minimum mandatory sentence on rape. In particular, the Ministry of Justice, Legal and Parliamentary Affairs should amend the Act to include minimum mandatory sentencing for rape and other sexual offences during this Session of Parliament. The Committee also recommended that the Criminal Law (Codification and Reform Act) be amended by my Ministry to ensure that it has adequate provisions, detailing sentencing guidelines.
Madam Speaker, sentencing in rape matters must reflect the outrage of the community at this heinous crime while allowing the courts to retain the objectivity and sense of proportionality for which they are rightly respected for in this country. For a criminal justice system Madam Speaker to work, like any other part of the legal system has on the confidence of the public, there will not be that confidence unless the people of this country believe that sufficient sensitivity is being shown towards their views and sentiments.
Madam Speaker, Section 334 (a) of the Criminal Procedure and Evidence Act provides the process of coming up with sentencing guidelines. It provides that the Judicial Service Commission from time to time convene a conference bringing together representatives of judges of the Constitutional Court, the Supreme Court, High Court, Magistrates, National Prosecuting Authority, the Police Service, Prisons and Correctional Service, the Law Society of Zimbabwe and such other organisations and bodies as in the Commission’s opinion have expertise or interest in crime, punishment and the rehabilitation or treatment of criminals for the purposes of study in discussing the objectives, policies, standards, criteria for sentencing offenders and formulating sentencing guidelines.
Draft guidelines may relate to enquiries and investigations to be conducted by courts prior to sentencing offenders. The factors to be considered by courts when sentencing offenders and principles and criteria which will assist in promoting consistency in sentencing and the equitable administration of criminal justice in Zimbabwe.
Madam Speaker, in terms of Section 334 (a) (6) of the CPEA Act, in formulating draft sentencing guidelines, a judicial conference pays regard to the need to promote consistency in sentencing; the impact of sentencing decision on offenders and their families as well as on victims of offenders, the need to promote public confidence in the criminal justice system and the cost of different sentences and their relative effectiveness in rehabilitating offenders and reducing crime.
The draft guidelines will be submitted to the Minister of Justice, Legal and Parliamentary Affairs for his or her consideration and publication as regulations.
Madam Speaker, in this regard, the Chief Justice established the Judicial Conference Council on sentencing guideline on the 4th of March 2022. It is planned that the actual conference will be held between the 14th and the 17th September, 2022. The conference shall study the inconsistencies in sentencing including for rape and also make recommendations on offences which require mandatory sentencing and those that have outlived their purpose.
Madam Speaker, Section 334 (a) (2) states that the section must not be construed as derogating from or infringing upon the exclusive competence of the legislature to enact punishments for breaches of any law, including the enactment of maximum, minimum and presumptive lengths of any sentence of imprisonment. Upon conference recommendations, the Ministry is open to recommend to Cabinet that the penal code be amended to introduce mandatory minimum sentences for rape and other sexual offences.
We once had a Memorandum of Principles of the Criminal Law (Codification and Reform) Act amendment approved by Cabinet and drafting instructions were sent to the Legislative Drafting Department. However, after the drafting process began, the drafters identified a number of gaps in relation to rape and other sexual offences and the need to rationalize these sexual offences in the Code.
The Ministry was then tasked to consult various relevant stakeholders on the same. New developments and various recommendations were proffered during the consultation process. The main recommendation is anchored on the need to broaden the focus of the proposed amendments and revisit all sexual offences as provided in Part III of the Code. Representations were made that it would be sensible to address some issues on the law relating to sexual offences before deciding on mandatory minimum sentences. These include matters such as the minimum age of consent for the purposes of rape, the definition of rape and whether there should continue to be separate offences of rape and aggravated indecent assault.
Madam Speaker, the Ministry acknowledges that the sentence for rape and sexual offences must fully reflect the depravity of seriousness of the crime. The idea of mandatory minimum sentences is to punish the offender sufficiently before they are brought back into mainstream society. Mandatory sentences are also supposed to deter criminals and repeat offenders.
Offences such as raping children, gang rape and rape where the offender knew they were infected with HIV are categorized as life threatening to the victim. Thus, a stiffer custodial sentence of such offences to match the severity of the crime would be appropriate. The level of such a mandatory sentence must not however be the same as the mandatory sentence for murder in aggravating circumstances because the rapist might then be motivated to murder his victim after he has raped her. It shall be recommended to Cabinet that the mandatory penalty for rape in aggravating circumstances be at 20 years minimum, while increasing the mandatory penalty for murder with aggravation to a minimum of 25 years.
Madam Speaker, it is for these reasons that the Ministry of Justice, Legal and Parliamentary Affairs shall recommend to Cabinet that Chapter V of the Code be amended by inserting the following categories:
- Gang rape
- Raping girls or a male who commits what is currently aggravated indecent assault on a boy;
- Rape where the offender knew that they were infected with HIV at the time of the offence;
- Rape of a person with disability;
- Rape of persons above the age of 18 in coercive circumstances;
- Rape of the elderly; and
- We shall further recommend that a register of sex offenders be created to allow monitoring and control of such offenders on their release from prison.
Madam Speaker, the Ministry shall recommend to Cabinet other amendments to the Criminal Law (Codification and Reform) Act. Amendments shall be proposed to Sections 65 and 66 of the Code on the crime of aggravated indecent assault to merge it with rape and create a single gender-neutral offence. The need for a gender-neutral offence arises from Section 56 (3) of the Zimbabwean Constitution, to ensure that men and boys are equally protected by the law. Currently, both offences attract maximum penalty of life imprisonment and a number of cases have been on the rise, of females raping boys and men. It shall therefore be proposed that we merge together a single offence of rape, the presently separate offences of rape and aggravated indecent assault, to cover all penetrative sexual acts committed under coercive circumstances.
In order to ensure maximum protection for children, that is persons below the age of eighteen years, a complete overhaul of the current provision on the age of consent to sexual activity shall be recommended in accordance with the order of the Constitutional Court in the case of Diana Eunice Kwenda v Minister of Justice, Legal and Parliamentary Affairs and others.
Madam Speaker Ma’am, additionally there shall be a recommendation to Cabinet that a prescriptive period for rape should be raised to 40 years. It must be acknowledged that the majority of abuse disclosures are delayed as disclosure is a gradual process. Given that disclosure, particularly in child sexual abuse, is more typical in adulthood than in childhood, maximum victim protection requires the raising of the statute of limitations to 40 years. This would require an amendment to Section 23 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Madam Speaker Ma’am, after effecting these amendments, it is not job all done. As Hon. Dr. Murire, Hon. Tekeshe and Hon. Mpame pointed out that justice is not about securing convictions and lengthy sentences at all costs. There is a need to look at other issues like proper gathering of forensic evidence and access to legal representation by accused persons. We need to capacitate our justice system with medical forensic equipment which helps the police in investigating rape cases.
When we legislate minimum sentence for rape, for example at 20 years, in addition to world class gathering of evidence to prove guilt beyond reasonable doubt, we also need to make sure that we guard against substantial injustice on the part of accused persons. We therefore need to capacitate our legal aid which then in terms of Section 31 of the Constitution, will provide legal representation to accused persons who cannot afford legal practitioners of their choice or in terms of Section 70 (e) which provides that an accused person has the right to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result.
To conclude Madam Speaker Ma’am, reduction of time in deciding rape cases is not feasible since some rape cases take longer to conclude and also the criminal procedure itself by nature and design does not allow shortcuts. The judiciary has in-house mechanisms to guard against unnecessary delays.
Even though, Section 334A (2) of the Criminal Procedure Act provides that the fact that the Judicial Service Commission can convene a conference on sentencing guidelines does not preclude the Legislature from enacting mandatory minimum sentencing. We find it prudent to wait for recommendations of the conference. If they point towards inconsistencies and the need for minimum mandatory sentencing, the Ministry shall not be hesitant to recommend minimum mandatory sentences for rape and other sexual offences.
Madam Speaker Ma’am, as I have alluded to earlier, sentencing for rape must mirror our community’s outrage while making sure that the courts maintain objectivity. We shall leave it to the Judicial Conference convened in terms of Section 334A to come up with the sentencing guidelines which the Minister shall publish as regulations. The issue of age of consent shall be addressed in terms of the order of the recent Constitutional Court case.
Considering that the Judicial Conference will be in September, it makes it impossible to introduce the amendments to Parliament in this session. The amendments, if approved by Cabinet, shall be introduced to Parliament by December 2022. I thank you.
THE HON. DEPUTY SPEAKER: Thank you Hon. Minister. Hon. Members may seek clarification from the Minister but I urge you not to debate.
HON. BITI: Hon. Speaker Ma’am. I thank the esteemed Minister of Justice, Legal and Parliamentary Affairs for his eloquent statement in response to the debate. I am shocked by the statistic that 21 women are raped every day, which would mean that every 75 minutes, a woman is being raped. There is something fundamentally wrong with the moral fabric of our society because that statistic is shocking. I urge therefore that there must be a strong and bold approach taken by the courts to ensure that there is deterrence and to ensure that anyone tempted to commit a heinous crime on another individual is punished. Rape constitutes the greatest violation on a woman because of the penetrative nature of the crime.
I support strong sentences but I also must caution Madam Speaker Ma’am that we must trust the Judiciary. The Judiciary is tried and tested. The Judiciary has got mechanisms in which they can balance the society’s anger against this brutal invasion called rape and also the interest of justice, including the subjective circumstances of an accused person. Therefore, I urge the Minister to push for this judicial colloquium and ensure that at the Judicial Colloquium, there are world experts that will speak on the issue. There are regional experts, there are African experts and there are Zimbabwean experts that should guard that colloquium and come up with recommendations that will be put to the Ministry and Government.
I want to draw the Minister’s attention to a number of judgements and thinking across the continent. I am going to refer to African judgements. There is a thinking across the continent that if the Constitution in Section 69 (1) guarantees the right to a trial, the right to a trial includes an enquiry on two things. The first enquiry is on culpability or guiltiness. So a court of law is equipped to determine whether a person is guilty or not. That enquiry includes a second stage, which is the penalty to be meted to an accused person. A proper trial includes an enquiry both on liability and conviction. The new thinking is that it is only the court which should be free to enquire in both circumstances; conviction and sentence, liability and penalty. Therefore, when a court finds itself with a mandatory sentence, you are denying the right to a fair trial because you have taken away from the court the obligation to enquire into the second leg of the enquiry which is the penalty. So, the judicial thinking across now is that mandatory sentences are unconstitutional because they breach the right to a fair trial codified in Section 69 (1) of the Constitution and the right to equal protection and benefit of the law codified in Section 56 (1) of the Constitution.
There are two important judgements on the African Continent. One of them is a decision of the Ugandan Constitutional Court by their Chief Justice, Justice B.J Odoki in the matter of Alice Kigula and another v Attorney General. That case Hon. Speaker Ma’am involved the imposition of a mandatory penalty of death when there were no extenuating circumstances. That used to be the case in our law. In Zimbabwe, the death penalty before the current Constitution used to be imposed when there are no extenuating circumstances found. Extenuation is different from mitigation. Extenuation are those special circumstances that may question your guilty. The Ugandan Constitutional Court through Odette J, held that if a court cannot inquire on sentence beyond extenuating circumstances, you have tied this court and therefore it is unconstitutional. That same line of thinking was followed in the Malawi Constitutional Court, in a case called Kafandala (State versus Kafandala). The Malawian Supreme Court came to that conclusion again that you cannot tie the hands of the judiciary. The judiciary must have the power to inquire bottom liability and on sentence.
Madam Speaker Ma’am, this is consistent with the principle of separation of powers. Just like the legislature cannot question the Government when the Government decides to put a tollgate in front of my house on Enterprise Road, the Executive cannot also question the judiciary in the field of the judiciary. So, I urge the Hon. Minister to respect the separation of powers. Otherwise I thank the esteemed Minister of Justice for a job well done. I thank you.
HON. T. MOYO: Good afternoon Hon. Speaker Ma’am. May I begin my presentation by thanking the Hon. Minister of Justice, Legal and Parliamentary Affairs for a job well done. The presentation was very good, however, I have two areas that I seek clarification on. The first one concerns Section 81 (1) of the Constitution that protects those girls who are under the age of 18. Will it please the Minister if we come up with legislation that would criminalise and convict those who deliberately rape girls and women, if they are castrated? I want to move a motion for castration of perpetrators of sexual harassment.
The second issue concerns those women who have a habit of drugging men for ritual purposes. I think we are yet to do an inquiry to establish what would be the reasons for harvesting those sperms. In this vein, we need to come up with a legal framework which would lead to deterrent measures to curb that practice which is very bad.
HON. T. MLISWA: Madam Speaker, thank you very much. I want to commend the Minister for that elegant presentation but which I think in a way is one sided. We have spoken about the girls and women being raped but the boys and men are raped too. It seems as if the law only bends on women. It will work for women and girls yet we know very well that there are quite a lot of young men who are raped. That is something which we also have to deal with because it is only one side of the sex that is affected. It is a gender issue across all genders. So what law do you have for women who also rape boys? It is unheard of but it is happening. That is caused by the proportion.
Swaziland is going to one man: 8 women. That is why in Swaziland they have gone about saying each man must marry eight women to address the imbalance. We do not have the law to address the imbalance. So there will be that deficit which causes women to then go out because biologically they need it. I also propose that there be a way where men can be circumcised and I think they can go the route of vasectomy but we need to come up with ways to see how women can also not have at will, to have sex so that they also do not rape. What sort of law can we bring in place too because these young men are traumatised at the end of the day?
There is also the issue of drugging young men for the sperm harvesting. What are you doing about that? Most of the perpetrators now are women. It is the same thing today, the issue of promiscuity. In fact, married couples are more promiscuous than us free legends. So you can see what is happening. It is a serious issue and more divorces will loom. Hon. Biti testified that he is seized with divorce cases of infidelity. That is why I chose not to marry because I know that I respect the institution of marriage, not because I do not want to but soon I will marry. When I marry I will be very faithful, but at this point in time – [Laughter.] - At this point in time, it is important that people practice – though it is on a lighter note, it is true we need to deal with these issues and the situation on the ground. The world population has more women than men. So there will be that deficit and there will be a desire but how do we stop that desire?
Hon. Moyo said we must castrate men who rape. I do not know what term in English. There is also need to castrate women if there is such a term. So, it must be both ways. The other issue on my point of clarity is in terms of the issue of economic hardship. We can pass good laws but there are also certain laws which are overtaken by economic hardships. The same thing as what we call commercial sex workers. You can say what you want to say, I am the patron for the commercial sex workers in Norton and when you talk to them they tell you the truth because of going through a tough time economically. We must find ways of preventing this and I think without really going for the hard core verdicts being passed. What measures are being taken to prevent and educate and awareness? A lot of times crime is committed because people are not aware. I think it is incumbent upon us Members of Parliament to run initiatives in our constituencies to ensure that we talk and educate people on this. Other than that, I think a stiff penalty both ways is necessary.
Finally, men are the number one players of rape because some of the rape charges are false. This is something which while they are 21 in a day, how many are false? Somebody comes to report rape after three or five years or three months because may be you have not given her money. Women have this issue of spiting each other. They spite and you go out with this woman, she is not happy, she says I was raped. So we also need to put a law for those who carry false charges that they must actually be in jail for the amount of time that one would be sentenced. We must move with that because it will be unfair since the number of rape cases in this country is mainly false. Hon. Biti was correct to say the Judiciary must also come up - when you have done false report of rape, you are also given the same sentence as one who would have raped and then you see there will be less because they pay with it and make money out of it, they are able to manipulate men as a result. So, those games must stop by bringing in a law too that will punish those that would have lied and you see less cases of rape would be happening. We do not have true figures on how many are subject to conviction and how many are not.
Thorough investigation is needed to ascertain that. I want to thank you Madam Speaker for that and I am glad the Minister is taking note of that. It has to go two ways and not one way.
*HON. MUCHENJE: I want to thank the Hon. Minister for his presentation which is quite good. I do not have much to say except to talk about rape cases that are being perpetrated by men upon their trusted relatives. In our culture it is a taboo. Because of that, these are issues that we need to look into because most rape cases are perpetrated by relatives. You find an uncle raping a niece, a father raping a daughter, an uncle raping their sister-in-law and children raping their mother.
Where I come from, there is a family which is brewing traditional beer to appease the situation where a son raped his mother. So I would like to say that those who rape vulnerable people like the disabled and elderly should be incarcerated because in our culture we value our ethos. No one should desire to sleep with their mother or daughter. So Hon Minister, the law should be specific to cases of incestuous rape. The law should be punitive enough. I believe that such people should be removed from society. I thank you.
THE HON. DEPUTY SPEAKER: I want to remind Hon. Members that we have to ask questions of clarification and not to debate.
+HON. MATHE: I want to thank the Hon. Minister who responded to the report just now and those who spoke before me. The report dwells much on the issues to do with rape cases, especially on the girl child and women. I do not want to debate the report but I want to indicate that the report is laid out properly and also I want to find out from the Minister that after coming up with the report, did he look on the issues or what contributes more to rape cases, especially to women and the girl child?
Whilst on that point, I also want to add on the point that was raised by Hon. Mliswa that men are also raped. I think the best way to deal with the cases of rapists is to castrate them. When you go to Norton where Hon Mliswa comes from, out of 18 households you will realise that the families are headed by men and only a few women will be heading those families. If you look at the number of rape cases that are there in the country, you will realise that most of the time women will try to cover the rape cases because once they report, it affects the income of the family. If a man rapes someone by the name Chipo, two months down the line they will commit another crime and rape Zodwa. They know that the women will not do anything because they are not empowered. Therefore, for that woman to survive, it is known that they will not take up the case and report it.
If we are serious about this issue, we need to take into consideration the issue of empowering women. We need to come up with laws that are aligned, especially when it comes to rape issues. We will continuously have such rape cases. If someone rapes someone like me they know that I will go and report because I am not depending on them or if they rape my daughter they know that whoever would have committed that crime, I will report them because I am empowered. I thank you.
*HON. MADZIMURE: Thank you very much Madam Speaker. When the Minister mentioned that 21 women are raped per day, what we did not get clarity on is how many cases are being reported at police stations. We need statistics of the cases that are being received at police stations. What has he done to make it easy for women to report these cases? Some of the cases that we know are very difficult when it comes to rape cases. Women are afraid to report because they are afraid of getting the breadwinner imprisoned.
Again the issue of urgency when dealing with rape cases, because the longer it takes, it complicates everything; if it is coming from a Minister who sits in Cabinet, these modalities should be easy for people to work on such issues.
(v)*HON. NYABANI: When it comes to the issue of punishment that is supposed to be given for people who commit such crimes, are we not supposed to act on these as legislators?. Some have mentioned the issue of castration for all males found guilty of rape. My question is - what will happen to those who are alleged to have raped when they have not done so? Right now when we look at the legislature, there is nothing really to show or scare away people from committing such crimes.
HON. ZIYAMBI: Thank you Madam Speaker. I want to thank the Hon. Members who sought some clarifications starting with Hon. Biti. He was just giving an explanation expanding on what I had indicated and raised very important points. I agree with him that the thrust of my presentation was that the judiciary must be allowed to do their job, to interrogate and do an inquiry on whether somebody is guilty or not and to ensure that they give an appropriate sentence.
So, I agree with him that as far as possible, even though
we have legislative powers we should refrain from having these mandatory sentences because they take away the powers from the Judiciary after inquiring on the guiltiness or otherwise, and giving appropriate sentence.
I also believe that we need to ensure that the judicial conference that is going to be done by the Chief Justice is done and we take up the recommendation.
Hon. Moyo had his own views that men must be castrated, it is a democratic country but I do not believe that we should go that far.
Hon. Mliswa was concerned about women who rape men. I addressed that in my presentation to say that perhaps we need to come up with a single crime of rape that is gender neutral.
Again, Hon. Muchenje what she spoke to is exactly what I alluded in my paper and what Hon. Biti was saying that the Judiciary in terms of Section 69 ensures that there is a fair trial and they inquire on the guiltiness and they give an appropriate sentence. So if we allow that to happen, they will look at the circumstances and give an appropriate sentence. Therefore, I agree with the Hon. Member.
By and large, Hon. Mathe was concerned about the empowerment of women which is outside the purview of the petition. It is a very important issue that she was raising but it is outside the purview of the petition.
Hon. Madzimure, I just took the statistics from the petitioner, those were not my statistics. I believe that I spoke about what the petition wanted; that is mandatory sentencing and I addressed that and the dangers of going forward ensuring that the only thing that we can do is to put a mandatory sentence.
The holistic approach that we want, considering what the judiciary does in terms of the sentencing, the committee looks into what needs to be done to the recommendations that they give me as regulations on sentencing guidelines for publication but by and large, I believe that it was a good petition. It allows us to interrogate those issues in terms of this critical topic on sexual offences and it also gave us an opportunity to have a holistical look at sexual offences with a view of coming up with amendments that this august House will be able to debate and we come up with a law that will speak to what we require as a nation.
I, therefore, want to thank the Hon. Members, the petitioners and the Portfolio Committee for the job that they did. I thank you.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Orders of the Day, Numbers 1 to 14 be stood over until Order Number 15 on today’s Order Paper has been disposed of.
Motion put and agreed to.
PRESIDENTIAL SPEECH: DEBATE ON ADDRESS
Fifteenth Order read: Adjourned debate on motion in reply to the Presidential Speech.
Question again proposed.
THE DEPUTY MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS (HON. CHOMBO): Thank you Hon. Speaker for giving me this opportunity to respond to the State of the Nation Address by His Excellency, the President of the Republic of Zimbabwe made on 7 October 2021.
Madam Speaker, allow me to start by expressing my gratitude to the State of the Nation Address which also marked the Opening of the Fourth Session of the Ninth Parliament of Zimbabwe by His Excellency, the President of the Republic of Zimbabwe, Cde E. D. Mnangagwa on 7th October, 2021 and the discussion made by the Hon. Members of Parliament that commenced on 19 October 2021.
Madam Speaker, following the declaration of State of National Disaster by the Government and the introduction of the first lockdown, it became apparent that Government, through the Ministry of Local Government and Public Works had to construct COVID-19 isolation and quarantine centres to manage the pandemic. Our Ministry requested for funds from Treasury and the first allocation was channeled towards the refurbishment and upgrading of isolation centres that were identified country-wide. The Ministry with the limited resources, managed to do a splendid job in all the ten provinces. The Ministry chairs the Resource Mobilisation and Coordination Subcommittee which mobilises resources for COVID-19 programme.
A total of 77 COVID-19 projects were done with 49 projects being isolation centres. However, some challenges were experienced during the execution and administration of the programme like funding and delays in procurement. It is however encouraging to note that the infection rate of COVID-19 has significantly gone down, although we remain vigilant and take all necessary precautionary measures to prevent the further spreading of variants.
Disaster Risk Management
Madam Speaker, the country has witnessed an increase in the frequency, intensity and complexity of disasters during the past few years with tropical Cyclone Idai being one of the worst disasters the country has experienced since independence. Recovery and reconstruction programmes in line with the principle of Building Back Better has seen restoration of normalcy in key sectors of shelter of which Government has constructed 135 habitable houses at Runyararo which is former West End Farm in Chimanimani and 296 houses in Tsholotsho. In Binga, a total of 17 houses have reached super structure level and only roofing is outstanding. In Chimanimani, additionally significant strides have been made in key sectors of education, health roads and bridges infrastructure, water, sanitation and hygiene as well as telecommunications, among other sectors.
The country received incessant rains during the past season which brought with them a plethora of challenges such as damage to roads and bridges infrastructure which saw numerous communities being displaced.
Government through the Ministry of Local Government and Public Works is intensifying efforts to further strengthen the disaster risk reduction initiatives through many ways. Government is currently constructing state of the art National Disaster Management Centre in Harare and it is expected to be completed by end of July 2022. The centre will be a one-stop shop for coordinating disasters where technical experts in the field of disaster management will be accommodated.
Infrastructure Rehabilitation Programme
Madam Speaker, in terms of reflections for the past few months after the State of the Nation Address by His Excellency, the President of the Republic of Zimbabwe in October 2021, it should be noted that it has been an eventful and exciting period for the Ministry, particularly on the implementation of the devolution and decentralisation projects in all the 10 provinces. We are convinced that this new architecture gave us the best chance to deliver on our mandate vis-a-vis the Devolution Agenda and Vision 2030 in particular.
Government disbursed inter-governmental fiscal transfers to local authorities in compliance with section 301 (3) of the Constitution of Zimbabwe. All local authorities received varying amounts based on an agreed formula that takes into account a number of variables. To date, local authorities have and are implementing various projects using the devolution funds. We have seen infrastructure projects being undertaken such as the construction of schools, clinics, bridges, water and sanitation facilities, roads and other social amenities.
Signing Of Performance Contracts
Madam Speaker, to enrich the work ethic of the Second Republic and the culture of accountability, all Permanent Secretaries, Ministers, Heads Of State owned enterprises, parastatals as well as 92 local authorities, chief executive officers and their chairpersons, on 10th February 2022 signed the performance contracts that were witnessed by His Excellency, the President of the Republic of Zimbabwe.
On 30th April, 2022, Mayors or chairpersons of local authorities signed their performance contracts with the Minister of Local Government and Public Works. The performance contracts of the chief executive officers and their outputs are now in operation and they have been included in the whole of Government performance management system. It is expected that the signing of performance contracts will enhance service delivery in local authorities and in public authorities.
Amendments of Acts
Madam Speaker, I am glad to advise that Cabinet approved Urban Councils Act, Rural District Councils Act and the regional Town and Country Planning Amendment Act in February, 2022. These principles are now with the Attorney General’s Office for drafting. Disaster Risk Management Act and Municipal Courts and Police Amendment Bill is work in progress, and Traditional Leaders Amendment Bill and Provincial Councils Bill are still at the Attorney General’s Office.
The approval of the principles will go a long way in assisting the Ministry to achieve its mandate.
The Building Environment and Urban Transportation
Government is taking measures to modernize and rejuvenate our cities and towns to modern day standards of smart cities. On-going projects include Mbare, Sakubva and Makokoba redevelopment projects to regenerate old sections of these cities and to uplift the standard of living and ambience of towns and cities. Furthermore, dysfunctional settlements are being mapped for regularization purposes and issuance of title deeds is expected to commence soon.
The New Parliament building is now complete and is ready for
Commissioning in this Third Quarter of 2022. We are appreciative of the support we have received from the People’s Republic of China for this important project.
In a bid to alleviate the transport challenges to urban dwellers, the New Dispensation introduced the Urban Mass Transportation System and currently, there are 760 buses in urban centres and 1 062 kombis in operation, working in partnership with private transport operators. Government has since acquired 457 new buses and we are expecting 500 more buses in the near future.
The partnership between ZUPCO and the NRZ to operate trains on three routes in Harare and two in Bulawayo is now in full swing. We are happy that the train service has greatly eased transport challenges that our people face while a raft of measures have been rolled out to decongest urban roads in major cities such as Harare, Bulawayo, Gweru, Kwekwe and Redcliff, amongst others as well as providing proper street lighting to enhance safety of the general public. I thank you.
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, 13th July, 2022.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that we revert to Order of the Day, Number 8 on today’s Order Paper.
Motion put and agreed to.
LABOUR AMENDMENT BILL [H. B. 14, 2021]
THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE (HON. PROF. MAVIMA): I have the pleasure to present the Second Reading of the Labour Amendment Bill. The Ministry of Public Service, Labour and Social Welfare has been seized with the process of reviewing labour laws in Zimbabwe since 2010, with the aim of aligning them with the Constitution of Zimbabwe and ratified International Labour Organisation (ILO) Conventions.
The review seeks to promote the ease of doing business in the labour market through strengthening and promotion of timely conclusion of processes. I will confidently say Madam Speaker that the Labour Amendment Bill 2021 is a product of extensive stakeholder consultation over a number of years and contains the various provisions. I will not mention all clauses in the Bill but will take the House to the main provisions.
The current provision in the Act suggests that forced labour may be permissible under certain circumstances and the Bill seeks to clarify the position by providing an unambiguous description of what does not constitute force labour in an attempt to provide clarity for effective prohibition of forced labour in compliance with section 55 of the Constitution, and Conventions 29 and 105 of the ILO.
I am happy that the Bill also provides for protection to employees against discrimination by entrenching the principle of equal pay for equal work value. The Constitution in Section 65 (6) provides that women and men have the right to equal remuneration for equal work. However, the current provisions in the Labour Act provide restrictive conceptual understanding of the principle of equal pay for work of equal value. This is also aligning with ILO Convention 100 on Equal Remuneration Convention of 1951 No.100.
Madam Speaker, we have a mandate to ensure that all gaps in law are provided through law reform and amendments. Our law did not provide for protection against violence and harassment in the work place including violence and harassment of a sexual based nature or gender based nature and unfair labour practice. The Bill closes this gap by providing the protection that is needed. Worldwide violence and harassment at the workplace is a vice and as a nation, we are not spared. There is need therefore to provide this at law.
We have noted with concern that employers in Zimbabwe are adopting a situation whereby they keep extending fixed contracts. This is not desirable in labour law and the Bill has a clause providing that a fixed term contract cannot be for a period that is less than 12 months unless the employment is for seasonal, casual work or for the performance of a specific service. The Bill also seeks to award employees’ protection regarding retrenchment packages. It provides for employers obligation to pay a retrenchment package to his or her employees and also ensures that employees are free to make representations to the Retrenchment Board where they allege that an employer has the capacity to pay a better retrenchment package than what is offered. Madam Speaker, I am happy to say that we have taken cognisance of the national duty that women undertake in child birth and have provided for a balance in the Bill of their roles as mothers and as working women through an alignment of the Labour Act with Section 65 of the Constitution on maternity leave. Women employees will have the right to fully paid maternity leave for a period of at least three months. This amendment also removes the qualifying period prescribed intervals for maternity and a maximum number of times for enjoying the right to maternity leave. The Bill also brings clarity to the registration of trade unions. The Bill provides specific pre-determined criteria to be considered by the Registrar in considering registration application of a trade union. Streamline registration procedures provide clear requirements and reasons for registration and deregistration.
Madam Speaker, in drafting the Bill, we also considered the positions given by various courts of law in interpreting Section 51 of the Act. In light of International Labour Organisation Conventions, the Bill in addressing various concerns raised seeks to repeal Section 51 on supervision of election of officers. This is to provide enjoyment of the right to freedom of association to enable unions to elect their leadership in accordance with the Constitution without interference from administrative authorities.
Madam Speaker, I am pleased to mention that the Bill spells out the right in Section 65 (4) of the Constitution to secure just, equitable and satisfactory conditions of work through a system of collective bargaining established by law. The clause also obligates every worker and employer within that industry to be bound by the collective bargaining agreement, considering the Supreme Court judgment of Isoquant versus Darikwa on the role of labour officers in conciliation proceedings. The Bill provides for expanded powers of labour officers to conciliate or refer to arbitration, matters referred to him or her and to issue certificates of settlement which can be registered as civil judgments.
Clause 32 provides for the liability and sanctions and sanction for workers committees and trade unions and employers’ organisations, federations of registered trade unions that organises, recommends, encourages, incites or engages in unlawful and prohibited collective job action.
Clause 33 repeals Section 111 which provides for cessation of collective job action. Having said this, I urge Hon. Members to support this Bill which is intended to promote fair labour practices, giving employees their rights as provided for in the supreme law of the land and maintaining a good labour market. I thank you.
With your indulgence Madam Speaker, I move that the debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 13th July, 2022.
BUSINESS OF THE HOUSE
HON. MUTAMBISI: Madam Speaker, I move that Orders of the Day, Numbers 1 to 18 be stood over until Order of the Day, Number 19 has been disposed of.
HON. MUCHENJE: I second.
Motion put and agreed to.
REPORT OF THE PUBLIC ACCOUNTS COMMITTEE ON NON-COMPLIANCE WITH REGARDS TO SUBMISSION OF FINANCIAL STATEMENTS TO THE AUDITOR GENERAL BY SOME STATE OWNED ENTERPRISES AND PARASTATALS
HON. SANSOLE: Madam Speaker, I move the motion standing in my name that this House takes note of the Report of the Public Accounts Committee on the non-compliance with regards to Submission of Financial Statements to the Auditor General by some State Owned Enterprises and Parastatals.
(v)HON. MUSHORIWA: I second.
HON. SANSOLE: Thank you Madam Speaker. I rise to present the Report of the Public Accounts Committee on Non-Compliance with regards to submission of financial statements to the Auditor General by Some State owned Enterprises and Parastatals by the Sub-Committee on State owned Enterprises and Parastatals.
Pursuant to the presentation of the 2019 Auditor’s Report to Parliament, the Public Accounts Committee resolved to analyse the Report on the State Enterprises and Parastatals. The report noted that 34 entities had not submitted their accounts, in clear violation of Section 308 of the Constitution and Section 35 (6) of the Public Finance Management Act (PFMA). In executing its mandate, the Committee resolved to invite these State-owned enterprises and parastatals for oral evidence meetings to appreciate the reasons for their failure to submit their financial statements for audit.
The Committee was guided by the following goals:
- To appreciate the reasons for failure of State-owned enterprises to meet the requirements of Section 35 (6) of the Public Finance Management Act which states that:
Every accounting officer of a Ministry shall-
- Keep or cause to be kept proper records of accounts; and
- Submit financial statements within sixty days of the end of the financial year to;
- the Auditor General for audit; and
- the Accountant General for consolidation.
To establish the dates of submission of financial statements by State-owned entities and parastatals who had their accounts in arrears.
The Committee resolved to invite for oral evidence sessions, due to COVID-19 restrictions, the meetings were conducted virtually over a period of three weeks. The following entities were called in for oral evidence session:
- Courier Connect
- Medical Laboratory and Clinical Scientists Council Of Zimbabwe
- Mining Promotions Corporation
- National Handicrafts Centre
- National Libraries and Documentation Centre
- National Museums and Monuments of Zimbabwe
- New Ziana
- Nurses Council of Zimbabwe
- ZARNET Private Limited
- Zimbabwe Broadcasting Corporation
- Zimbabwe Media Commission
- Zimbabwe National Statistics Agency
- Zimbabwe Posts Properties
- Zimbabwe Posts
- Zimbabwe Schools Examination Council
- Zimbabwe Youth Council
Most state-owned enterprises submitted that the outbreak of the COVID-19 pandemic affected them in submitting financial statements in time as required by the PFMA. The lockdown restrictions of March 2020 made it difficult for entities to fully function. Some of the agencies did not have infrastructure to enable social distancing and also equipment to enable staff to work offsite resulting in loss of valuable working days. Nurses Council of Zimbabwe closed their offices because of the pandemic. ZARNET also submitted that the onset of COVID-19 pandemic in March 2020 saw a series of lockdown restrictions including the reduction of working hours which was sometimes getting to a minimum level of 10% of the manning levels, thereby causing delays of finalizing financial statements.
COVID-19 derailed the audit process for ZIMPOST and its subsidiaries after their system crashed. It was expected that by June, 2020, all the outstanding audits for 2017 and 2018 would have been done and by the third quarter 2020, they would be current in terms of financial statements as well as audits. The company chairperson promised to have completed the 2017 and 2018 audits by October 2021. Once done, the company would proceed to 2019 and 2020 audits. Courier Connect was working on being compliant by the first quarter of 2022. The draft 2019 and 2020 financial statements were sent to the office of the Auditor General.
Furthermore, the COVID-19 pandemic also hindered the office of the Auditor General to visit entities for audit. Entities such as Zimbabwe Schools of Examination Council (ZIMSEC) had already submitted their accounts but because of COVID-19 the Auditor General could not finalize audits. ZIMSEC produced evidence that they had complied with the submission of financial statements.
For 2019 financial statements, Zimbabwe Media Commission was advised by the Auditor General to have 2019 unaudited financial statements signed by the Permanent Secretary before submission to the Auditor General. The 2019 were completed in 2020 and the Permanent Secretary has signed the draft. However, the Auditor General deferred the audit of the financial statements due to COVID-19. Statutory accounts have not been concluded due to the COVID-19 pandemic.
Medical Laboratory and Clinical Scientists Council of Zimbabwe explained that COVID-19 lockdown restrictions were one of the reasons which contributed to its failure to meet the requirements of the Public Finance Management Act. The council indicated that it used to outsource accounting services but because of their size, it appointed an accounting officer in March, 2020 and that coincided with the first COVID-19 lockdown. They further expressed that when the lockdown was eased, travelling was restricted to only those who were considered as essential service providers. Council employees do not directly work with patients, so they were not considered as such. Therefore, the parent Ministry did not extend travel documents to council staff.
The majority of the State-owned enterprises who appeared before the Committee complained about staff shortages and poor remuneration. The Nurses Council of Zimbabwe has had a serious staffing shortage dating back to 2014. The Accounts Department in the council was manned by three officers, a book keeper, an accountant and the finance and administrative executive. ZARNET has a staff establishment of 32 employees and the current staffing at the time of submission had only eight.
ZARNET, in its submissions, indicated that their salaries were uncompetitive leading to skills flight and brain drain. Because of these operational challenges the entity restructured the Finance and Administration Department in 2016, thereby reducing the staff complement from six to two. The entity operated without a substantive Chief Executive Officer from 2015 to 2017. The Chief Executive Officer was only appointed in February 2018 and that is when the organisation was able to clear the backlog from 2015.
National Libraries and Documentation Centre submitted that they did not have an accountant and its books of accounts were done by a mere librarian which the Auditor General stated was not correct.
ZBC also complained of staff turnover in the Finance section due to poor working conditions. There was also a retrenchment exercise in 2014 which affected the Finance Department significantly and the preparation of financial statements.
National Handicrafts Centre states that the organisation was operating with four staff members; that is Acting General Manager who is the former buyer, the sales person, driver and a general hand.
Post Properties explained that the reason why they failed or delayed in submitting the 2019 accounts include staff shortages. They indicated that management was on suspension from July to October, 2019 due to some internal investigation that was conducted by the parent company. In February 2020, the then Acting General Manager of the company also left and this was followed by massive resignation of staff especially in the Finance Department and the list included the Accountant who left in November 2019. The entity was left with limited staff that were mainly seconded from the ZIMPOST group who took long to understand the system and to bring the accounts up to date. These changes brought some challenges that delayed the finalization of the 2019 financial statements.
Unavailability of Board of Directors.
Some of the State owned enterprises have been operating without boards of directors. At the time of submission, the Nurses Council of Zimbabwe had been operating without a board of directors for 14 months. The Zimbabwe Media Commission (ZMC) explained that 2018 was the same year when it was considered for a separate Vote in the budget. Thus, there were no reports of the Chairperson to Parliament through the Minister as required. The CEO further explained that the Commission reported monthly and quarterly financial statements frequently to the Accountant General, Procurement Authority of Zimbabwe, the Auditor General and to the Minister.
The Mining Promotion Corporation also submitted that they had failed to submit their audited statements in time because in 2020, the corporation did not have a substantive board and was reporting to the Permanent Secretary for the Ministry of Mines and Mining Development. Subsequently, a board was appointed in mid-June 2020 and the board was immediately seized with the matter of putting accounting books in order.
The Zimbabwe Youth Council explained that they did not have a board of directors since 2016 and the financial statements were being submitted through their parent Ministry. The Zimbabwe Youth Council’s 2018-19 accounts have been submitted through their Ministry. The entity explained the measures to put up the board of directors in place.
State owned enterprises blamed the hyper-inflationary accounting in their delay in submitting their financial statements. The Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) informed the Committee that the institution prepares its financial statements using international financial standards. He further explained that ZEC has never missed the deadline of submission before. The CEO explained that in 2020, the institution wrote to the Auditor General seeking procedure necessitated by the need for the production of inflation adjusted financial statements as per the Public Accounts and Auditors Board announcement of January 2019.
ZIMSTAT also submitted to the Committee that the hyper-inflation accounting was responsible for their delay in submitting financial statements. According to ZIMSTAT, the adoption of International Financial Accounting Standard 29 (IAS 29), which deals with financial reporting in hyper-inflationary economies resulted in an increase in the workload since two sets of financial statements are needed to be prepared, that is, the historical cost and the inflation adjusted one. Prior to this period, only historical financial statements were prepared. The Zimbabwe Media Commission had further attributed their delay in submitting financial accounts to the need to report accounts in a hyperinflation economy.
System related issues
ZIMPOST and its subsidiaries, that is, Courier Connect and Post Properties explained that the reason for failure to submit financial statements was due to the crash of their internal system. ZIMPOST expressed that since its inception, it had been producing audited financial statements until 2016. The company together with the Group , lost all the accounting data due to a system crash on 15th December, 2017. Following the crash, ZIMPOST Group notified the Office of the Auditor General in a letter dated 30th January, 2018 and the auditor Deloitte and Touche in a letter dated 30th January, 2018. Investigations were made as to why and how the system crashed. After the crash, efforts were made to restore the lost data. Online backup failed to restore the lost data. Offline external back up managed to restore information up to August 2016, thereby retarding the audit process. The company had to recover the information from physical files and had to first upload the information into the accounting system. The company has since restored all the data and is now current in terms of capturing the information. The auditors concluded the signing off of the 2016 audits in January 2020 and they were currently auditing 2017 and 2018 concurrently.
Introduction of new currencies
ZIMSTAT explained that the reason why it had not submitted the 2019 accounts was due to the introduction of the new currencies. The agency uses multiple currencies in its transactions and Sage Pastel Evolution System Version 7 database for accounting. The system did not have the foreign currency module to enable multiple currency conversions to the reporting currency. Thus, conversions were done in excel spreadsheets which took time.
New ZIANA complained about hefty audit fees they were charged. They explained that when they submitted their financial statements to the auditors, they were charged US$4.300 for the service which the organisation did not have. They submitted that New ZIANA was to a greater extent supported by the fiscus in terms of the salary grant and was required to fend for itself for operations and other financial obligations. They indicated that in the year under review, the entity received ZWL$777.694 from Treasury, of which $728.960 was meant for staff salaries. The balance for $48.734 was used to augment financing for operations, mainly the production of the newspapers.
Most State-owned enterprises do not have adequate ICT infrastructure that is needed considering that the Government was embracing e-governance in its operations model in the COVID-19 era;
Some State-owned enterprises like ZIMPOST do not have sufficient backup systems;
The Auditor General’s office is not fully capacitated in terms of ICT infrastructure. Many SOEs had completed their audits but the Auditor General’s office was taking long to go through them;
Skills flight and brain drain of skilled workers has resulted in shortages of key personnel in the Accounts Department of State-owned enterprises due to poor remuneration and working conditions;
Delays by Ministries to appoint boards in time such as the Zimbabwe Youth Council and the Zimbabwe Nurses Council is a threat to good corporate governance and might negatively influence the direction to be taken by State-owned entities;
Legacy issues to do with prior period errors on financial statements have resulted in delays in the finalization of annual financial statements for State-owned entities such as the Zimbabwe Broadcasting Services (ZBC). In this context, 2016 financial statements were signed off in 2019 and the 2017 audit report was finalised and signed off in 2020;
The hyperinflation accounting environment in the country coupled with lack of key personnel has created accounting delays in submitting financial statements. The adoption of International Accounting Standard 29 (IAS 29) which deals with financial reporting in hyperinflationary economies resulted in an increase in workload since two sets of financial statements were prepared, the historical cost and the inflation adjusted one;
The use of multicurrency in the country was making it hard for some organisations to record the actual amounts as their accounting systems, that is, Sage Pastel Evolution system Version 7 database for accounting did not have the foreign currency module to enable multiple currency conversions to the reporting currency.
Hefty audit fees were being charged by some auditors to analyse financial statements. In the case of New Ziana who were asked to pay US$4 300 whilst it is an entity that is supported by the national fiscus in terms of salary, grant and also required to fend for itself for operations and other financial obligations.
In line with the IT modernisation and the threat of COVID -19, it is imperative that State owned enterprise invest in technology based gadgets so that people can work off site by December, 2023.
There is need for enhanced data protection, storage and back-up in all State owned enterprises to avoid the situation of losing data when systems collapse by October, 2022.
Where the Auditor General’s office failed to conduct audits due to COVID -19 restrictions, this should be brought to the attention of the Committee so that the entities are not blamed for the delay.
Parent Ministries must ensure that boards of directors of State owned enterprises are in place at all times and are executing their duties accordingly.
In conclusion, the Committee observed that State owned enterprises were affected by various factors that include COVID -19 pandemic, shortage of staff and the delay in appointment of boards of directors in the submission of financial statements. The Committee anticipates that the entities will comply with the Public Finance Management Act and that the documentations of this report will be implemented. I thank you.
(v)HON. MUSHORIWA: Thank you Madam Speaker. I would like to add my voice to the report that was tabled by Hon. Sansole, pertaining to non-submission of audited accounts to the Auditor General (AG) so that they are audited. Let me premise my debate and contribution by stating that Zimbabwe has got about 179 State entities and they range from public commissions, companies, parastatals and all of them were established by Government for various reasons with objectives for the furthering of the goodness of the people of this country.
You will appreciate and understand that the AG is mandated by the Constitution to audit all Government entities, Ministries, State enterprises and local authorities every year. It is also mandatory that every entity should submit its financial statements to the AG within three months after the end of each financial year. You know that our financial year as Government ends on 31st December each year. So by the end of March, it is expected that each and every entity, including the Ministries and local authorities should have submitted their financial statements for auditing.
The AG is then supposed by 30 October to submit a report to Parliament pertaining to her work or her audit. In doing this, we need to take cognisance of the provision of the Constitution in terms of public finance management and also our Public Finance Management Act as well as the Audit Act. The Public Finance Management Model is meant to make sure that there is accountability and transparency in the handling of public funds. This is the reason why your Committee Madam Speaker was so disappointed to find out that a number of State entities, commissions have decided or failed or neglected to submit their financial statements to the AG.
Some of the entities go as far as 10 years without submitting financial statements for the AG to audit there. What that means is that when financial statements are not audited for such a long period of time, there is danger that there is misappropriation of funds. There is also danger that the objectives of that entity are not being accomplished and at the expense of the general populace of this country. Admittedly Madam Speaker, as Hon. Sansole has pointed out, there are some entities that complained and raised various raised reasons, which I would just probably summarise some of them.
Before I do that, I also want to point out that the report is of the 2019 AG’s report. Members may need to be reminded that the AG’s report came a little bit late or was delayed primarily because of the COVID -19 restrictions, which made it impossible even for the AG’s office to carry on its mandate of auditing the accounts. Members should also be aware that the Public Accounts Committee submitted a report pertaining to some of the issues that need to be done to empower the office of the AG to carry its work even under harsh circumstances as COVID -19.
Be that as it may, we have entities that claimed inability to do the 2019 report due to COVID-19, which may probably be understandable and can actually be pardoned for it was a disaster. However, we have got entities that are contained and which have been stated by Hon. Sansole, entities that went as far as 2009, nothing has been done. They have not submitted the financial statements. In fact some of these entities are technically insolvent. Some of them are just entities that are just there. You will see there are entities, for instance New Ziana, they will tell you that they do not even have the money to hire an auditor to come and do the audit. You look at companies like the National Aircraft, the National Library, you will realise that these entities have actually become obsolete in the sense that they are not performing to the dictates that they were established for.
There are other entities like the group for the former post and telecommunication company (PTC), NetOne and others that failed to do their accounts, primarily because they claimed that their system crashed. There are also entities where the line Ministry has been sleeping on duty. They were failing to appoint board of directors for these entities. Some of these entities do not even have competent and technical people in the relevant departments. For instance, you will find that in some of the entities, there is no accountant, no accounts clerk and in other cases you will find that somebody who was a buyer is now the chief executive of that entity. An entity that has 38 employees and now has four employees and none of them has any accounting background. It is actually a disaster for the country. The country continues to bleed and the fiscus is drained. Whereas the entities are supposed to serve the country, they take away money which is supposed to go to the public and they end up eating that money.
In our recommendation as laid out by Hon. Sansole, there are several things that we recommend. We recommend that Ministries need to wake up and do their mandate, appoint the boards on time, scrutinise and ask for mandatory reports which are supposed to come. If an entity fails to submit reports, we expect the Permanent Secretaries in these Ministries to do their work.
The second issue which we want to raise relates to the Corporate and Governance Act. The Corporate and Governance Act requires boards to be appointed and that no Permanent Secretary and senior member in the Ministry is allowed to be part of that board. We have noted that some of the Ministries have decided or neglected to appoint boards so that the Permanent Secretary would end up doing the work of the board which contravenes the Public Finance Management Act and contravenes the Corporate Governance Act.
We need our Portfolio Committees to demand that each and every line Ministry should actually give a report or status pertaining to the performance of each and every parastatal under them. When we do that, it will possibly help to make sure that we whip the Ministries to do their work. It is one thing for an entity to fail to perform but it is another thing for an entity to disregard the Constitution of the country, the Public Finance Management Act and Parliament by failing to submit statutory reports and financial accounts. It is wrong.
In this regard, I want to urge all Hon. Members to support this motion that Hon. Sansole has actually moved and make sure that each parastatal, commission and public institution should submit its financial statement timeously every year so that the Auditor General will have a chance to scrutinise each and every expenditure so that the people of Zimbabwe are well served. I believe that accountability and transparency is a key cornerstone even as we fight corruption and as we want this economy to blossom. It can only do that if we as Parliament who have the duties of oversight over the Executive do our part. I want to support this motion and urge all Hon. Members to support the motion for I believe it will help as we go forward to make sure that there is accountability and transparency within our parastatals and State entities.
(v)HON. B. DUBE: Thank you Madam Speaker for giving me the opportunity to air my view relating to the report of your Public Accounts Committee that was tabled by Hon. Sansole. The starting point is to thank Hon. Sansole for the clarity on issues and making sure that the key areas are covered.
I will start by indicating the provisions of Section 298 of the Constitution of Zimbabwe which actually calls for transparency and accountability in financial matters as a peremptory. It is mandatory that all Government institutions, entities and enterprises act and perform in a transparent and accountable manner. One such way of doing so is actually by presenting themselves to audit and making sure that their financial matters are properly audited and published by the Auditor General.
So, what does it mean for State entities not to present their financial statements and not to subject themselves to the dictates of audit? It actually means that they are acting unlawfully, illegally and unconstitutionally and in the end they are making themselves a law because the law is already there and they are violating it. If we go again to the provisions of Section 299, they give Parliament oversight of revenue and expenditure. Parliament can only oversight when information is given. Relating to these entities and enterprises that Hon. Sansole has made a report on, Parliament is unable to oversight these institutions because the finances have not been presented and availed for purposes of making sure that Parliament can follow if they are doing things the right way.
What is surprising is that all these institutions and entities fall under specific Ministries which have responsibilities to supervise them on behalf of Zimbabwe. I believe that the ball is squarely on the Ministries in question and the Ministers must explain to the nation why they are acting negligently, irresponsibly and why they are allowing the things to happen in the manner that they are happening because it is not good for the country and anyone.
We always talk about patriotism in Zimbabwe and Hon. Togarepi brought in a debate relating to the aspects of trying to regulate patriotism. I will tell you that an unpatriotic person is a person who does not submit themselves to audit. All the CEOs and board members as well as Ministries under whom the audit statement has not been presented are very unpatriotic. They do not love Zimbabwe and they are sabotaging our country because they do not want us to move forward. All patriots must be interested and keen to know how the funds of this nation are being handled.
You would wonder how a patriotic Minister would handle a parastatal under their authority going for years without a board. Without a board they are not even able to appoint external auditors to do the audit for the institution. All the Ministers who have not appointed the relevant boards to the parastatals, it is my view that they are unpatriotic and they are sabotaging the country and the efforts to make Zimbabwe work and function again.
By way of observation, most State owned enterprises do not have adequate ICT infrastructure and therefore are unable to comply with e-governance proposition that is required for purposes of making sure that they are efficient and effective in their duties and therefore this means that we do not have adequacy in terms of governance and performance in parastatals. Some State owned enterprises do now have backup systems, which means their information can be easily lost and cannot be recovered. It is also clear that there are no sufficient skills in various parastatals. Many parastatals are operating with unskilled or not adequately skilled people, which is a contradiction because Zimbabwe prides itself as one of the most educated places in the continent. You then wonder how do we then come up with such a position where we do not have the right people in right places in the parastatals.
Legacy issues also remain a serious challenge in places such as the Zimbabwe Broadcasting Services, in this context, 2016 financial statements were signed off in 2019 and the 2017 Audit Report was signed in 2020. So one wonders how the national broadcaster is functioning when things are operating like this.
Delays by the Ministers to appoint boards on time such as in the Zimbabwe Youth Council and the Zimbabwe Nurses Council is a threat to corporate governance and might negatively influence direction that is taken by the State owned enterprises and we are left to ask what is Hon. Coventry and her team doing if the National Youth Council does not have a board on time and who is she working within the youth sector and who is giving them adequacy without such an important and key board in place.
You also wonder why it will be done if we are serious and we have patriotic Ministers. So, it is my submission that there is no patriotism in some of the ministries and the Ministers are sabotaging the state of Zimbabwe.
There is also an issue that was being raised as a main challenge for some parastatals relating to accounting. They were saying they were facing challenges as a result of the multi-currency system which was making some organisations very difficult to reconcile records in the Pastel Evolution System Version 7 data base. So, you then find that the Ministry of Finance is also in some way sabotaging our State owned enterprises and entities by the contradictory and the unclear financial policies that cause it to be difficult for State owned enterprises to run their books well.
There is also a challenge that relates to underfunding in some of the parastatals. The parastatals are underperforming on their own, they are supposed to have been realizing profit and declaring dividends to the shareholder in form of the Government but they are saying they are failing to raise the fees even for audits as small as $4 300. Some of the parastatals are failing to raise that amount.
So what it is demonstrating is that the current economic environment is not conducive and it has caused a lot of suffering and discord within parastatals and the parastatals are failing to discharge their mandate.
By way of recommendation, Ministers must be patriotic and must supervise the entities under them. All those Ministers must go before the Portfolio Committees that are oversighting them and explain the reason and the justifications for failing to appoint boards on time. The Permanent Secretary has to explain why it has been difficult to employ the right people in the parastatals.
On ICT, more funds need to be channeled towards modernisation of our governance systems. We need to make sure that we invest in information technologies and make sure all our State owned enterprises are technologically up to date and are able to function in terms of the current technological demands.
We believe that by the beginning of the second quarter, I submit that the relevant Minister responsible for Information Technology must submit a report to Parliament indicating how far they have gone in terms of percentages on ICT in all ministries and all parastatals, State owned enterprises as well as even in local authorities.
There is also one recommendation that I think is important that all ministries must appoint outstanding boards as soon as possible. The Portfolio Committees in respective ministries must make sure that they get an update on the appointment as soon as possible because this is hampering progress.
However, by and large, my point is that for us to demonstrate that we have patriotism in our parastatals and in our ministries, we must demonstrate this by having prudence in terms of financial management. We have must have the transparency and accountability as our first indicator for being patriotic. Slogans are not a reflection of patriotism, playing jiggles and dancing at rallies is not a demonstration of patriotism. Patriotism can only be demonstrated by exercising transparency, accountability and prudence in financial matters that affect our people. This will help a long way in making sure that the goal of a middle income in the country by 2030 is achieved. It can only be achieved by patriotism and patriotism starts by being audited. I thank you.
HON. SANSOLE: I move that the debate do now adjourn.
HON. S. K. MGUNI: I second.
Motion put and agreed to.
Debate to resume: Wednesday, 13th July, 2022.
BUSINESS OF THE HOUSE
HON. MATAMISA: I move that all Orders of the Day on today’s Order Paper be stood over until Order of the Day, Number 31 has been disposed of.
HON. TEMBO: I second.
Motion put and agreed to.
REPORT OF THE PORTFOLIO COMMITTEE ON INDUSTRY AND COMMERCE ON THE FACT FINDING VISITS TO SABLE CHEMICAL, LANCASHIRE STEEL AND ZISCO STEEL
Thirty First Order read: Adjourned debate on motion on the Report of the Portfolio Committee on fact finding visits to Sable Chemicals, Lancashire Steel and ZISCO Steel.
Question again proposed.
HON. S. K. MGUNI: Thank you Madam Speaker. I would like to wind up the Report of the Portfolio Committee on the fact finding visits to Sable Chemicals, Lancashire Steel and ZISCO Steel but before I do that, allow me to thank the Hon. Members who contributed immensely on this report particularly Hon. Banda. Hon. Banda commended that the report was very pertinent but it required us as a Committee to revisit Zisco Steel to have a fact finding visit since some of the items that we had listed especially on the quotation of the prices that were needed had passed their time.
Hon. Mushoriwa is one of the Hon. Members who also contributed positively. He was one of the Committee Members in the Industry and Commerce Portfolio Committee. The outstanding issue which he highlighted is that as a Committee we need to lobby for more funds for the Industry and Commerce Ministry for it to be allocated more funds, especially when it comes to the budget because the Ministry of Industry and Commerce is the backbone of the economy of this country.
Then there was Hon. Nduna. He commented that the Ministry has been getting such reports for the past maybe two consecutive parliamentary terms and he was of the view that the reports that we table in the Parliament, we should maybe adopt and implement them. He was in fact pleading with this august House that Cabinet should implement the reports that we are bringing to this Parliament so that some of these challenges that we are facing can be surpassed.
Seeing that the Ministry did not have any negative observation on the report that we tabled on 3rd May of the current year and most of the Hon. Members did not have any objections or any adverse contributions, they were in support of our report, Madam Speaker if you allow me, I would like to move for the adoption of this report.
Motion that this House takes note of the Report of the Portfolio Committee on Industry and Commerce on Fact Finding visits to projects implemented under the Industrialisation programme, put and agreed to.
On the motion of HON. MUTAMBISI, seconded by HON. S. MGUNI, the House adjourned at Seven Minutes past Five o’clock p.m.