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NATIONAL ASSEMBLY HANSARD 13 OCTOBER 2015 42-12
PARLIAMENT OF ZIMBABWE
Tuesday,13th October, 2015
The National Assembly met at a Quarter-past Two o’clock p.m.
(MR. SPEAKER in the Chair)
BUSINESS OF THE HOUSE
- GONESE: Thank you Mr. Speaker Sir. I move that Orders of the Day Numbers 1 to 4 be stood over until the rest of the Orders have been disposed of.
- RUNGANI: I second.
PRESIDENTIAL SPEECH: DEBATE ON ADDRESS
Fifth Order read: Adjourned debate on motion in reply to the
Question again proposed.
THE MINISTER OF STATE FOR MANICALAND
PROVINCE (MS. CHIMENE): I move that the debate do now
Motion put and agreed to.
Debate to resume: Wednesday, 14th October, 2015.
STATE OF THE NATION ADDRESS BY HIS EXCELLENCY,
Sixth Order read: Adjourned debate on motion in reply to the State of the Nation Address by His Excellency, the President of Zimbabwe.
Question again proposed.
THE MINISTER OF STATE FOR MANICALAND
PROVINCE (MS. CHIMENE): Mr. Speaker Sir, I move that the debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 14th October, 2015.
BUSINESS OF THE HOUSE
- GONESE: I move that Order of the day Number 7 be stood
over until the rest of the orders have been disposed of.
- RUNGANI: I second.
Motion put and agreed to.
BUSINESS OF THE HOUSE
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGAGWA): Mr. Speaker Sir, I move that we revert back to the
First Order of the day.
Motion put and agreed to.
GENERAL LAWS AMENDMENT BILL (B.H. 3, 2015)
First Order read: Second Reading: General Laws Amendment Bill
(H. B. 4, 2015)
Question again proposed.
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGAGWA): Thank you Mr. Speaker. I move that the General Laws Amendment Bill (H. B. 3, 2015) be now read a second time. I was of the assumption that I had done my Second Reading speech, but I have been informed by the staff that I had not. I therefore do it now. As you may be aware, I think that some hon. members are so obsessed by wrong things –[Laughter]- that at right times, they always think about incorrect things.
As you may be aware, Zimbabwe underwent a historic process of enacting a new Constitution and repealing the 1980 Lancaster House
Constitution. The enactment of the new Constitution of Zimbabwe on
the 22nd May, 2013 ushered in a number of new obligations and new policy areas on the part of the State. Arising out of these obligations is the need to align all laws that are inconsistent with the Constitution so that they conform to the new Constitution.
Significantly, Section 324 of the Constitution compels the State to ensure that all constitutional obligations are performed diligently and without delay. As such, my Ministry identified a total of 400 pieces of legislation which require alignment, 126 of which will be aligned with the Constitution by way of the General Laws Amendment Bill.
However, let me highlight that there are two types of legislation that can be effected by the Constitution. There are substantive changes which lead to the amendment of the principle Act or the creation of a new Act. The other is the minor changes or non-consequential changes that are brought about by the Constitution. These changes do not lead to the creation of a new Act but rather bring minor changes such as changes of name or office, e.g. from Provincial Governor to Minister of State.
As highlighted earlier, the enactment of the new Constitution brought about changes to more than 400 pieces of legislation, thus necessitating an omnibus General Laws Amendment Bill, which will effect non-consequential changes to these pieces of legislation. These are said to be non-consequential changes because they are minor in nature, which effect for instance a new name or term being brought by the Constitution. These do not materially impinge on the entire Act and once that is rectified, the Act will become correctly aligned to the Constitution.
Let me highlight forthwith that I am going to touch on a few selected pieces of legislation. As alluded to earlier on, this Amendment Bill is an omnibus Amendment Bill. It touches on 126 pieces of legislation effecting both non-consequential and consequential changes to them. Hence, it is impossible to highlight which changes are being effected on each and every piece of legislation, hence the selection of a few, wherein consequential changes were effected. The consequential changes to the Bill highlighted below including the Interpretation Act are urgent and of utmost importance.
Amendment of the Interpretation Act
Over and above the Constitution being the supreme law of the country, it has brought with it changes to the Interpretation Act, where there is need to include new definition terms as found in the new Constitution. As such the supremacy of the Constitution supersedes that of Parliament. This is embodied in Section 2 (1) of the Constitution. It therefore has to be understood and accepted by every Zimbabwean that any law, practice, custom or conduct inconsistent with the Constitution is invalid by reason of it being inconsistent.
Amendment of the Privileges, Immunities and Powers of
This Amendment Bill also seeks to alter the power of Parliament to defend its dignity and prestige in face of contempt towards it and breaches of its privileges, through restricting its imposition of the sentence of imprisonment. This is necessary since the provisions of the Privileges, Immunities and Powers of Parliament Act are in contradiction with the provisions of Section 148 of the Constitution. The present power given to Parliament under the Privileges, Immunities and Powers of Parliament Act is too magnanimous because Parliament can request the Attorney General to launch a prosecution in respect of any offence over which Parliament could exercise its autonomous criminal jurisdiction. Therefore, the amendment being brought by the Constitution is necessary in that it allows for an Act of Parliament that will not permit an imposition of any in the nature of a criminal penalty but rather a fine for breach of privilege or contempt of Parliament. Thus, the Privileges, Immunities and Powers of Parliament Act has to be amended in order to fit this proviso of the Constitution.
Amendment of the Electoral Act
Of importance, I wish to highlight that this Amendment Bill introduces the functions of the Zimbabwe Electoral Commission (ZEC) and seeks to do away with the office of the Registrar of Voters. Section
239 (c), (d) and (e) of the Constitution gives ZEC the new responsibility for registering voters, compiling voters’ roll and registers and ensure the proper custody and maintenance of voters’ rolls and registers. This means that the Registrar General will be confined to the duties of maintaining registers of births, deaths, marriages and citizenship. Also, the Bill seeks to amend and update references to office, terms and provisions used in the old Constitution, which have been overtaken by the new Constitution. The amendments also remove some superfluous and abolished processes such as special voting.
Amendment of the Criminal Law (Codification and Reform)
Under Items 1, 2, 3, 4, 5, 9, 10, 11, 14, 15 and16, the amendments seek to replace the expression ‘shorter period of imprisonment’ by the expression ‘definite period of imprisonment’ which is more accurate.
Under Items 6, 7, 17, 28 and 29, interesting to note is the departure from the designation ‘Prison Service’ to ‘Prisons and Correctional Service’ as provided for by Section 227 of the new Constitution which
Under Item 8, the new Constitution is one of the most progressive
Constitutions in the region as far as the Bill of rights is concerned.
Zimbabweans must be applauded for coming up with such a progressive Constitution that recognizes the importance of fundamental freedoms and liberties. Let me elucidate that as such, this Amendment Bill will also touch on the Criminal law (Codification and Reform) Act. Major highlights are on the restriction by Section 48 of the Constitution to impose death penalty on women, a person who was less than twenty one years when the offence was committed and on a person who is more than seventy years old. Interesting to note is the fact that death penalty cannot be made a mandatory penalty but a court must use its own discretion to impose it. This proviso brings out the sanctity of life by protecting the right to life.
Consequently, this Amendment Bill seeks to provide that the death penalty for murder is competent only where the crime is committed in aggravating circumstances and that a court has discretion to instead impose a sentence of imprisonment for life or a prison sentence of at least twenty (20) years.
Mr. Speaker Sir, under Item 12, as highlighted earlier on, the Constitution is progressive in terms of human rights, Section 3 thereof sets forth the founding values and principles of Zimbabwe where rights of women, the elderly, youth and children are recognised. The Criminal Law (Codification and Reform) Act prevents sexual exploitation of younger persons and only adults may be prosecuted for this crime because the subject of the crime is a person and its object is a young person that which is below 16 years as defined in Section 61 of the Code. It is in the interest of the society to protect all young persons, hence it is proposed that the Act be amended to effect the following proposed changes, that where two young persons aged between 12 and 16 engage in sexual intercourse or an indecent act, neither of them should be prosecuted for the crime of sexual intercourse or performing an indecent act, with a young person, unless the report of a probation officer finds that it is proper to prosecute one of them for the offence.
Mr. Speaker Sir, under Item 18, the definition of a public officer is given to mean the redundant office of the provincial governor. This has since been replaced by chairpersons of Provincial Councils as provided by Chapter 14 of the Constitution. It is thus proposed to amend as is provided by the Constitution.
I wish to highlight that this Amendment Bill also seeks to propose that the courts be given the discretion to decide whether a person has taken any significant step towards the commission of an offence before convicting that person of attempting to commit it. This is so because the distinguishing between an attempt to commit a crime and a mere preparation raises more problems and has never been canvassed in our courts, hence the proposal to leave it to the courts to decide.
Mr. Speaker Sir, under Items 20, 21, 22 and 26, the original purpose of the Criminal Law Code was to simplify the degree of responsibility where two or more persons are associated with a crime. Therefore, it is stated that if a person authorises a crime but is not present at its commission is regarded as an accomplice but this amendment seeks to revert to the Common Law position. It holds that someone who authorizes the commission of a crime should be distinguished from a mere accomplice in the ordinary sense because he/she is rather a principal not an accomplice. This distinction should not be ignored because it makes a difference in sentencing since courts have a tendency of not punishing accomplices as much as they do to the principals and actual perpetrators.
Mr. Speaker Sir, under item 24, accomplice liability is dependent upon liability of the actual perpetrator, as such a person cannot be an accomplice if the actual perpetrator has a complete defence to the crime. Section 197 (3) (a) of the Code provides that where an actual perpetrator has defence that reduces the liability of that person, the accomplice will still be liable as an accomplice as if the other person were the actual perpetrator. There arises some confusion because the term ‘accomplice’ as presently used in the Criminal Law Code, encompasses also a principal who authorizes the commission of a crime without actually committing it. It therefore follows that, the principle ‘acts of an agent are the acts of a principal (qui facit per alium facit per se)’ becomes true if one substitutes the word ‘accomplice’ with the word ‘principal’ in subsection 3. Since the principle ‘acts of an agent are the acts of a principal (qui facit per alium facit per se)’ is embodied in subsection 3 of the new Section 196 A of the Constitution, it is therefore proposed that subsection (3) should be repealed and substituted by a different subsection which makes it clear that if an actual perpetrator is not found and brought to trial, another person can be convicted as an accomplice.
Under Item 25, this amendment seeks to distinguish the types of assistance referred to in Section 198 (e), (f), (g) and (h) of the Criminal Law Code from case where the person rendering them may be liable as a co-perpetrator rather than as an accomplice.
Mr. Speaker Sir, under Item 27, Section 200 of the Criminal Law Code should also be recrafted to provide that principals and accomplices should not escape criminal liability entirely where they simply withdraw from participation in a crime before it is committed if the crime is subsequently committed without their participation. A provision is required to cover withdrawal from crimes by co-perpetrators and those who were present at the scene of the crime may only escape liability for the crime only of they take action to prevent the commission of the crime but must still be liable for conspiracy or attempt to commit the crime.
Mr. Speaker Sir, under Item 30, in relation to rights of convicted persons, the Amendment Bill seeks to do away with disproportionate punishment. This arises when a person is convicted of a crime in specified aggravating circumstances that may render him or her liable to severe punishment, if at the same time, he or she is also convicted of any other crime whose factual elements are the same as the specified aggravating circumstances. This may amount to cruel or inhumane punishment contrary to Section 53 of the Constitution because the convicted person will be subjected to double penalisation. Subsequently, it therefore calls for a new clause to avoid double punishment.
Amendment of the Trademarks Act
Mr. Speaker Sir, let me also highlight that this Amendment Bill also seeks to amend the Trade Marks Act, among other pieces of legislation. This is not a constitutional alignment but timeous compliance with our international treaty obligations with respect to international property rights, in particular trademarks. This amendment will see Zimbabwe acquiesce to the Madrid Protocol (World Intellectual Property Organisation) concerning the International Registration of Marks. This protocol aims at shortening the process of registering an international trademark.
Mr. Speaker Sir, hon. members will note that this Amendment Bill addresses the above mentioned pieces of legislation and the other one hundred one that I have not mentioned, thereby effecting nonconsequential changes to them. It is my hope that this mother of all Amendment Bills will ease the burden on our Constitutional Court as a sizeable number of legislation will be aligned to the Constitution. I laud the General Laws Amendment Bill of 2015, to the House and move that the Bill be now read a second time. I thank you.
- MAJOME: Thank you Mr. Speaker Sir. I want to begin by commending the Vice President who also acts as a Minister of Justice, Legal and Parliamentary Affairs if I may say that for his zeal in pursuing the much needed and very urgent alignment of our statute books to the Constitution. I also want to thank him on behalf of your Portfolio Committee on Justice Legal and Parliamentary Affairs for his exceeding patience in allowing your committee space in terms of time to conduct its role and fulfill its functions in terms of analysing and interacting with Bill in question.
I will present the report of your Portfolio Committee pertaining to the General Laws Amendment Bill that is indeed as I indicated is testimony of the Vice President’s commitment to ensure that finally we now start to align our laws to the Constitution in a serious and concerted manner.
Your Committee’s membership is as was appointed. I must say though with regret, that there are certain members of our Committee that our Committee has never seen to date. We hope that they will come and hold meetings particularly now that the requirements for the quorum in terms of the Standings Rules and Orders are so much higher. It will be most helpful if hon. members who are members of this Committee do come so that we can make a quorum.
- SPEAKER: Order, can you give me the names of those that have perpetually absented themselves so that we can deal with the matter?
- MAJOME: I will do Mr. Speaker sir. I will indeed oblige. Your committee deliberated upon the General Laws Amendment Bill in terms of Standing Order No. 19 which requires that we consider the Bill and therefore make recommendations relating to it as I will indicate.
The General Laws Amendment [H.B. 3, 2015] Bill was gazetted on May 8, 2015. The Bill seeks to ensure that all Acts of Parliament in force before the new Constitution became effective are aligned to the Constitution. The Bill also seeks to resolve some minor anomalies in the statute book.
1. 2.0 METHODOLOGY
This report is a product of consultations by the Committee through public hearings conducted from 27 to 31 July 2015 in Bulawayo, Gweru, Masvingo, Mutare and Harare. The consultations were in compliance with Section 141(2) of the Constitution of Zimbabwe, which requires that Parliament ensures that interested parties are consulted about Bills being considered by Parliament. The Committee’s report was also informed by written submissions from interested stakeholders and an analysis of the Bill by the Committee.
2. 3.0 THE COMMITTEE’S FINDINGS
The Committee received the following submissions on the General
Laws Amendment Bill:
3. PART I: Amendment of the Interpretation Act
Although the General Laws Amendment Bill amends several definitions contained in the Act to align them to the Constitution, several other definitions that needed amendment were omitted including the definitions of
- Administrative Court,
- Police Force (to Police Service), and
- Public Service and Public Service Commission (to Civil
Service and Civil Service Commission).
Stakeholders welcomed the restatement of the principle that the Constitution is the supreme law and must prevail over any inconsistent provisions in Acts of Parliament and statutory instruments.
4. PART V: Amendment of Privileges, Immunities & Powers of Parliament Act
Stakeholders were concerned that the General Laws Amendment Bill seeks to impose imprisonment as a punishment contrary to the express provision of Section 148(2) of the Constitution that specifically prohibits Parliament, its Members or Officers from imposing any punishment in the nature of a criminal penalty for breach of privilege or contempt of Parliament.
However, the proposed amendments do not take into account the fact that Zimbabwe has a bicameral parliament e.g.
- The President of the Senate is not accorded the same privileges as the Speaker, who, under the Act, enjoys the same privileges as those enjoyed by Members of
Parliament necessarily because the Speaker is not a
Member of Parliament under Section 126(6) of the Constitution.
- The President of the Senate is not authorized, as the Speaker is, to issue a certificate exempting a person who has given evidence before committees of the Senate from being sued for defamation.
- The transmission of sentences to courts by Parliament infringes on the principle of separation of powers.
PART VI: Amendment of the Electoral Act
The Committee stands by its recommendations in its report on the Electoral Amendment Bill that was before Parliament in 2104, which were largely not considered.
Stakeholders called for greater clarity on provisions that require
ZEC to cooperate with “the former Registrar-General of Voters” and empower ZEC to give “the former Registrar-General of Voters” instructions to ensure the efficient conduct of elections. Although stakeholders generally welcomed the proposed transfer of the conduct of election from the Registrar-General to ZEC, they were wary of the continued involvement of the Registrar-General’s office in the conduct of elections when Section 239 of the Constitution clearly makes ZEC responsible for registering voters, compiling voters rolls and registers, and ensuring their proper custody and maintenance.
Stakeholders also applauded the requirement that voters’ rolls and voters’ registration certificates record voters’ sex as this will be a useful statistic to analyze results of elections in any gender bias in voter registration. Further, stakeholders welcomed the aligning of the Electoral Act with the Constitution on when a person who is elected as president assumes office as well as the reinstating of postal voting to election officers who will be on duty on polling day.
However, there was general consensus from stakeholders that the few amendments proposed to the Electoral Act are not nearly as many as are needed. In particular, stakeholders observed that the following issues were left unaddressed:
- The right of Zimbabweans in the diaspora, prisoners and hospital patients to vote, especially in light of Section 67(3) of the Constitution that prescribes that every adult citizen has the right to vote on all elections;
- ZEC’s monopoly over voter education emanating from section 40A to 40F of the Electoral Act, which is far more restrictive than envisaged by Sections 239 and 61 of the Constitution. Stakeholders submitted that the Bill will add a further restriction on voter education by requiring people wishing to provide voter education to furnish their voter education materials and course of instruction to ZEC for scrutiny at least 28 days before the use of the materials.
- The continued staffing of the Electoral Court by judges of
the High Court when Section 183 of the Constitution states that judges cannot be appointed to sit in more than one court and Sections 161 and 162 of the Electoral Act constitute the Electoral Court as a court separate from the High Court.
- Section 12 of the Electoral Act which requires ZEC to get approval from the Minister of Justice, Legal and Parliamentary Affairs before accepting a donation as this infringes on ZEC’s constitutionally guaranteed independence in terms of Section 235 of the Constitution, since Ministers are active players in the election process.
- The requirement under Section 192(6) that regulations made by ZEC must be approved by the Minister of Justice, Legal and Parliamentary Affairs, which is inconsistent with Section 235 of the Constitution. Stakeholders opined that the approval of regulations is a competent function of
- The conflict between Section 160 and 161 of the Constitution that give ZEC the responsibility of fixing boundaries of wards and constituencies and provision under the Urban Councils and Rural District Councils Acts vesting the responsibility of fixing ward boundaries on the
President and Minister responsible for local government.
- While section 37B of the Electoral Act envisages the President fixing the dates for the delimitation of constituencies, Section 161(1) of the Constitution confers that responsibility on ZEC.
- The lack of safeguards around postal voting and the number of assisted voters.
- The lack of provision for the filling of a vacancy that may occur between general elections in the seat of a senator representing persons with disabilities.
- In addition, the Committee saw no evidence that the Zimbabwe Electoral Commission was consulted about these proposed amendments and any recommendations made by it duly considered as required by section 157(4) of the Constitution. Parliament cannot pass these amendments before this is done as the Constitution prohibits it.
- The Bill also fails to make provision for the modalities of such mandatory consultation of the Zimbabwe Electoral Commission before amendments to the electoral law are made.
- PART XX: Criminal Law (Codification and Reform) Act
Provides a non-exhaustive list of circumstances which the court shall regard as aggravating circumstances in a murder case, thus effectively re-instating the death penalty for murder without any prior debate in Parliament whether the death penalty should be retained in
Omissions relating to the Criminal Code
There are also various offences in the Code that are not dealt with in the General Laws Amendment Bill, some of which are questionable in light of the Constitution.
- The Bill does not address the age of consent for the purposes of rape and aggravated indecent assault. Presently, for both crimes, the law provides that a victim below the age of 12 is irrefutably presumed to lack the capacity to consent to the sexual act in question. The law also provides that if a boy or girl above 12 but is 14 and below, the person charged will be guilty of rape or aggravated indecent assault unless there is evidence that the girl or boy was capable of giving consent to the sexual intercourse or the penetrative sexual conduct. There is strong argument for raising the age of consent of these crimes.
- The case of Chimakure & Ors v A-G S-14-13 ruled as unconstitutional several aspects of the offence of publishing false statements prejudicial to the State.
- The Constitutional Court ruling in the case of Madanhire & Anor v Attorney-General  ZWCC 02, will require the repeal of the crime of Criminal defamation contained in
Section 96 of the Criminal Law Code.
11. PART CXX: Amendment of Trademarks Act
The Zimbabwe Institute of Patent and Trademark Agents (ZIPTA) expressed strong reservations about the merits of domesticating to the Madrid Protocol at a time when the number of local trademark owners seeking international protection of Zimbabwe marks is negligible. Your Committee was informed that the Madrid system largely benefits foreign rights owners and external trademark agents operating in advanced economies. ZIPTA submitted that domesticating the Madrid Protocol will allow the bypassing of local trademark agents from filing trademarks locally which will prejudice the fiscus as it will export jobs, reduce the taxes that were being levied against local agents and reduce the tariffs charged for registering patents and trademarks, which tariffs will now be determined internationally. In addition, the proposed amendment will take away the safeguard in Zimbabwe’s law requiring that patent and trademark agents be lawyers.
The Committee was also informed that ZIPTA’s concerns are not unique to Zimbabwean trademark agents, but are valid concerns that have been raised in other jurisdictions as has been highlighted in a study by the World Intellectual Property Organization (WIPO). Notably, some countries with more vibrant economies than our own have not hastily acceded to the Madrid protocol because of the effect of the protocol on the business of local trademark agents and, more importantly, the potential loss of revenue.
12. 4.0 COMMITTEE’S RECOMMENDATIONS
4.1 The Honourable Minister should introduce a more comprehensive Electoral Amendment Bill that addresses the omissions, after consulting ZEC as required by Section 157(4) of the Constitution.
4.2 Parliament should be allowed to fully debate the issue of whether or not Parliament should pass a law that permits the death penalty in accordance with Section 48(2) of the Constitution. Or, if Parliament does decide to reinstate the death penalty for murder committed in circumstances of aggravation, then a new provision should be added to set out that the death penalty is not mandatory and the court has a discretion to impose the death penalty after weighing aggravating circumstances against any mitigating circumstances.
4.3 Regarding amendment to the Criminal Law Code, the
- Carrying out a thorough review of the Criminal Code provisions as a whole to identify any further gaps, anomalies and contradictions, and to examine the need to improve some of the provisions in light of contemporary developments.
- Strengthening and introducing new provisions to deal with sexual abuse particularly as it relates to children. Provisions need to be added on matters such as sexual grooming, involvement of children in child pornography,
and downloading and distribution of material relating to child sexual abuse. There is also an urgent need to establish a register of sex offenders so that they can be monitored after their release from custody in order to prevent them re-offending. The adequacy of the maximum sentences for offences relating to sexual abuse needs to be addressed. There is also a need to address the interlinked issue of child marriages because such marriages can lead to sexual abuse.
- 4 Regarding the proposed amendment to the Trademarks Act, your Committee recommends that sufficient consultation with relevant professional bodies as well as further studies on the merits and demerits of domesticating the protocol be conducted to ascertain whether Zimbabwe is ready for the protocol and whether domesticating the same will not adversely affect Zimbabwe’s revenues currently being generated from the direct filings of patents and trademarks at the national office.
- 5 Raising the age of sexual consent to 16 for the crimes of rape and aggravated indecent assault so that a girl or boy will then be presumed irrefutably incapable of giving consent for the purposes of the two crimes. There is need for adequate consultations with stakeholders on the age of sexual consent.
The Committee would like to express its profound gratitude for being accorded the opportunity to carry out the public hearings and implores the Executive to consider the afore mentioned recommendations in order to allow Parliament to truly make laws for the order and good governance of Zimbabwe as required by Section 119(2) of the Constitution. In particular it would allow us to heed the founding provision of the principle of good governance that dictates that we must heed the public’s gathered views as that would accord with the reminder that we must never forget in, Section 3(2) (f) of the Constitution to show ‘respect for the people of Zimbabwe, from who authority to govern would is derived’.
MR SPEAKER: I must acknowledge your impressive report – [HON MEMBERS: Hear, hear]- It is a good example to other Committees. At the same time, I want to remind the Committee that we have got two Houses and one Parliament. If you read Section 135 and 154 (1) correctly, you will understand that your attempt to dethrone the Chair may be unwarranted.
- CHASI: I rise also to congratulate the Vice President and Minister of Justice, Legal and Parliamentary Affairs on this Bill which reflects the hard work that has been taking place over the months in producing this Bill which is quite wide ranging in its coverage.
I would simply want to speak to the amendments to the Trademark Act and to congratulate the Minister again in that respect and also to say that the Minister did not have an alternative because the Constitution requires that once an agreement has been signed, it must be domesticated. I think the objections that have been raised are quite late and should be addressed in other forms.
I also want to say that this amendment is very important in that it brings to the fore the very important role that intellectual property law plays in the economic development of the country. I want to say that the objections that I have had which have not been supported by research can be controvetted by research. I know that countries like Kenya are benefiting from the use of the Madrid Protocol. All that I would say is that as a country, we now need to push intellectual property law to the fore. Anybody who understands the Malaysian economy will know that it is predicated on international property law. Universities are required to carry out research. The national budget reflects a lot of budgetary appropriation for purposes of research and development. These are issues that we need to begin to consider.
There is also need to be aware that there is a lot of innovation that is happening in this country. There is a lot of innovation that is occurring but which is not protected from an intellectual property law perspective.
There is a lot of counterfeiting that is going on. People are aware of the Eversharp case where people are making those pens externally depriving the local company and coming into Zimbabwe to sell them. Local shoes are also being made outside and sold in this economy. We need to strengthen this framework and profile intellectual property protection very highly and recognise the very important role that it can play and should play in our economic development. I must say that my research shows that in quite a number of countries, the area of intellectual property law is actually constituted as a ministry in its own right and I think if we follow through on this trademark amendment and trading partners, we will be able to generate business for local patent practitioners.
At the end of the day, the concern must be the national interest and not the private practitioner’s concern. I also want to end by congratulating the Chairperson of the Committee for the wonderful report that she has presented. I thank you.
MRS. MISIHAIRABWI-MUSHONGA: Let me join others in
thanking the Vice President for having brought the General Laws Amendment Bill because it speaks to the issues that this Parliament spends a lot of time working on. Let me just also comment on the report which the Committee Chairperson brought – I hope Mr. Speaker Sir, you will see just how well and diligent women chairs can be –[HON MEBERS: Hear, hear]- and I hope that when you do try and find out who comes to attend these Committees and you do a gender disaggregation, you will actually find out that the majority of these Committees, it is the women Members of Parliament that sit diligently in those committees. I just thought I needed to say that.
Mr. Speaker, I did listen to the hon. Vice President and Minister of
Justice, Legal and Parliamentary Affairs as he spoke about this particular Amendment Bill, in particular, as he spoke about the different things that he seeks to do. That seeks to do some consequential or nonconsequential amendments and some just putting different names to some of the issues. However, my disappointment comes in some of the things that you do find speak against the spirit and letter of both the Constitutional Process and the content of the Constitution itself. I will try and just speak on those because the Committee has actually dealt very well with most of the technical issues that we need to be looking at.
Mr. Speaker Sir, if one looks at Part 5 of the General Laws Amendment Bill, the issue around the Privileges and Immunities. I actually heard the Chair asking Members of Parliament to listen because I do not think hon. members actually understand what this amendment seeks to do to their privileges as Members of Parliament. I want to raise this with the hon. Vice President. I think when we debated the Criminal Procedure and Evidence Amendment Bill, I did raise this and said for somebody who was part of the Constitutional Making Process, one would know what it is, and in what context the Constitution was being crafted and why certain things took centre stage so to speak.
The issues around privileges and immunities, the reason why we have a specific section, which is Section 148 in the Constitution, is that there are things that had happened and began to curtail the freedom of Members of Parliament. The reason why people spent time coming up with that particular section was on the understanding that you wanted a legislator that was free enough to be able to speak. I must say that when you look at the amendment that is being brought, it goes contrary to what the hon. Vice President was saying. When you listen to the hon.
Vice President and Minister of Justice, Legal and Parliamentary Affairs’ second reading speech, he seemingly was saying to us, you know we are doing this so that we would make sure that immunity and privileges are improved. In fact, when you go into the detail of it, it is actually cutting off that particular immunity.
Mr. Speaker Sir, if you will allow me, I actually went into Section
148 because I wanted to see whether something in that section on the Privileges and Immunities of Parliament, spoke to something that allowed Parliament to some extent or the Executive to take away any of those privileges. There is absolutely nothing in it. In fact, it actually says in Section 148, last sentence, “…but no such Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of
Parliament.” But when you look at the amendment, it is seeking to bring the issue around the criminal punishment through the back door as she said.
What is more worrying is that, it does not only seek to bring it back but to almost create a double punishment because in reading that particular amendment, first it speaks to the issues that Parliament may take you on so you can be charged by Parliament, but it also speaks to you perhaps being imprisoned during sessions of Parliament. For example, if we are sitting as this particular session, you can go in and only get out of prison when the next session starts. For me, to borrow the
‘boggles mind’, you were not there sorry Mr. Speaker, there is a minister who said he is boggled and so we like that term now. So it boggles me because I am …
- SPEAKER: It does what?
MRS. MISIHAIRABWI-MUSHONGA: He said he is boggled
so I am borrowing his term.
- SPEAKER: It boggles the mind.
MRS. MISIHAIRABWI-MUSHONGA: It is unfortunate you
had travelled. We had a very good time. He said he was boggled.
Basically Mr. Speaker, for me it only speaks to the issues that we may actually have a situation where you have your Members of
Parliament not free to do or act in a particular manner. I think the idea of Parliament, and we have seen most of these Parliaments with people throwing chairs at each other. That is the spirit of the debate, confrontation and it is the issues, but if you look at some of the issues in the amendment, they basically stop any of those things. For example, I will not know what it is that I can do or cannot do without going to jail. I am free to go across to another member and say to them, can I pull you out, go and beat you up because I think it is okay.
In this instance, I do not know whether this will be intimidation or else. In fact, when you read the amendment, it is almost as if you are better off committing this crime outside than you can commit it when you are in here. If I assault somebody by clapping them because they have been silly by commenting on my dressing, literally I am just taken to the police station and pay a fine of about $20. I am not sure that given the issues that are being raised here, if I equally do the same and clap an hon. Member of Parliament, will I necessarily get a $20 fine or will I, of necessity, be charged by fine and then later on can be imprisoned during that particular time of the session. So, I really think Mr. Speaker that this is one issue that we really need to debate. One understands where it may be coming from, that perhaps people are trying to curtail behaviours and things like that, but the moment you do so, then you will run against the spirit of what we are trying to do.
I was looking at the Constitution and was saying, perhaps what would have been better if anybody felt that we should not have a section that deals with privileges and immunities, and then you should just have gone to the right of conscience because when you go to the limitations of those fundamental rights, it gives you a section where there are exemptions to that limitation. The issues around freedom of conscience are not part of those exemptions. So, I really would want to ask the hon.
Vice President and Minister of Justice, Legal and Parliamentary Affairs that this really violates the spirit of the Constitution. Like I said, he would know that this debate was quite serious when we debated it.
The second issue that I want to raise Mr. Speaker Sir, is the issue around the Zimbabwe Electoral Commission (ZEC). I do support the issues that the Committee brought to the House but I just want to speak on one issue on that aspect. I think it is Section 8(5) of the General Laws Amendment Bill, which makes reference to the Minister, that the Minister may direct the Registrar of Voters to do certain things. I find that a bit problematic Mr. Speaker, particularly when it talks about ‘after consultation’. One would say, if we are going to have that particular clause, one would propose that perhaps it be done in consultation. I say so because the issue around independence is also one of the main issues that we do have in our Constitution in that the independence of commissions in general, is underlined by the fact that they should not operate under any direction of any individual. The fact that we are now having in this particular amendment, a reference to a minister, I think is
a bit problematic. I do understand and had made some comments but I will just not talk about them around the roving political agency because like the hon. Vice President said, he will bring substantive amendments to the House. Perhaps, those are issues that one may want to deal with.
Mr. Speaker, Item 12, that really got me upset, I must say. This is the one that talks about children that are under the age of 12 and 16, that if an indecent act happens between these two, none of them will be taken on or will be charged for that indecent act. I just think that this is the most frightening thing that I have heard.
I am not sure whether the hon. Vice President and excuse me for this language, because I have to be quite specific about what I talk about. Mr. Speaker, the men in this House know that generally, boys start having serious erection and can do penetration at the age of 13. So, somebody has to tell me -[AN HON. MEMBER: Inaudible interjection]- Yes, it is there and you know that boys reach puberty at the age of 13 and they can have full penetration. So, how can somebody sit there and tell me that if a girl is penetrated by a gang of boys, which is what is happening, and we have had so many stories where these young girls are literally gang-raped. She may think that it is fun because she is young, so you may read that as consent. Can you really say if a girl is gangraped or even raped by one individual, this person will not be charged? I also do not understand the provision that says, ‘unless a probation officer says otherwise’. Why are we now giving the responsibility to a probation officer? Just take this issue to court so that the court can determine whether there is really an issue or that there is no issue.
In fact, what we are doing in Parliament now is that we ourselves are now taking responsibility of saying this is an indecent act or it is not an indecent act. Perhaps, I should put it this way because I find that most men; I know that you are outside that group, have difficulties in understanding rape in terms of rape as it relates to a boy and a girl. So, let me put it graphically. I am sure that rape would also mean sodomy because men I guess they never get penetrated unless in a homosexual relationship. In other words, you are saying if they are within the age of
13 and 16 or 12 and 16 and there is sodomy that happens. This
particular amendment is saying, that cannot be said to be unlawful. I find that totally unbelievable.
Mr. Speaker, I think that the Chairperson of the Committee raised the issue that what is topical in this country, whether we are talking about child marriages or what, it is the whole issue of age of consent. I was disappointed in that if we were bringing the General Laws Amendment Bill, the one thing that we should have done is to actually include in it, an amendment that says age of consent is being moved up to 18. I am not even going to 16 because 18, in my opinion is the legal age of majority and that is the age in which anybody can consent. So, whether they consent to an older man who is 95 years old or to a boy who is what age – I do not care. The fact is that there is no consent for anyone who is below 18 years.
So, if there is one thing given what women on both sides of the House have been talking about, this is one amendment that I actually was shocked with, that any drafter could have sat down and looked at it. I am sure that the hon. Vice President did not see this properly because even as he read through it, I did not hear that he was underlining that. So, it must be the drafters who threw it in one way or the other. So, I believe that that is not an issue.
Like I said, I heard the Vice President speak to the issue of changing names and so on and I saw that on - I think the Minerals Act; there is a change on the nomenclature of the provincial governors being changed to provincial councils. I still do not understand why that would be important to change when we still do not want to come up with an Act around devolution. I find it problematic. So, changing the nomenclature will now call them provincial chairpersons? Provincial chairpersons of what – of councils that do not exist? So, it is one amendment that I looked at and thought ‘Priscilla you may be too stupid to know, perhaps there is some intelligent reason to that’.
Let me finalise with this point which was one problem which I did not raise. This amendment was seriously problematic because it was bringing all sorts of things and I understand what he is talking about in terms of an ‘omnibus’, but it was so difficult because if you read that, it is amending a particular Act that you do not have. So, literally you would have wanted to have some of these Acts so that you can understand why this amendment is coming and in what context. If you did not have it there, it will be very difficult for you to pick the gist of what is happening. Anyway, I found and I want to applaud the hon. Vice President in terms of, when you go to Acts that are to do with universities, I think that it is on page 56. It is the Zimbabwe Open University on Clause 3 where there is an amendment that talks about appointing the members of the Council, ‘the Minister shall endeavour to ensure that at least half of the appointed members of the Council are women’. I thank him for putting that.
However, I am concerned that if we found it necessary to include a particular issue that is in the Constitution so that we make sure that when people appoint people, they consider the issue of gender which is fantastic. I then had a problem in saying so, what are we doing with
Section 18 which talks about fair regional representation. I then went on
Mr. Speaker, to check particularly just universities. When you were
here last time, I spoke about the commanding officers and what it is that we see in those senior commanding officers of the various provinces. I said, if you look at it, there is only one province that has a senior commanding police officer that comes from the south and that person is in Matabeleland South – L. Ncube and nothing else. Look at what the universities are like and if we do not deal with the issue of fair regional representation, I will not tire to raise this because we need to continuously remind each other that you cannot have something in the Constitution and continue to ignore it.
Let us look at the University of Zimbabwe – Prof. Nyagura; Great
Zimbabwe University – Prof. Zvobgo; Midlands State University – Prof.
Bhebhe; NUST – Prof. Sibanda; Africa University – Munashe Furusa;
ZOU – Dr. Kurasha; Chinhoyi – Prof. David Simbi; Lupane – Pardon Kuipa; Bindura University – E. Mwenje.
My question Mr. Speaker is, and I raised this question last time when we debated the Criminal Procedure and Evidence Bill. If we are generally taking an attitude in this country that somebody can come from the south and they can go and be allocated a particular position in the north, then let it be clear. I want to see a vodhloza sitting in Mashonaland Central because it cannot be right that you have a situation where in Lupane for example, you have a Pardon Kuipa. It cannot be justified in any form. So, even if it is not about, the Section 18 that I am talking about, which is fair regional representation, it is just about the issue of, ‘we need to begin to and we talk about it’. If we look at the devolution one, it actually speaks about ‘please look at the people who live in those areas because they know the kind of issues that are happening in those places. This is why today we are having a minister coming up with a policy that says maths and science; otherwise you will not go to a university. It is clearly because that person has no appreciation that when you are talking about Matebeleland, there are no schools that teach science subjects. Therefore, making that particular judgment at this point in time does not work. So, it speaks to the fact that unless… - [AN HON. MEMBER: Inaudible interjections] – Yes, unless you have people who are coming from that particular region who understand the challenges that are in that region, we will continue to have the problems that we are having.
Mr. Speaker, I have spent time... - [AN HON. MEMBER:
Inaudible interjections] – No, at least he is a recipient of what the Minister of Primary and Secondary Education is proposing and I hope that as the Minister of Higher and Tertiary Education, Science and Technology Development, he is going to say - I wanted to say nonsense but I will not say that because it is unparliamentary, but this cannot be accepted because he also comes from that region and he understands what I am talking about.
I just want to thank you Mr. Speaker and I hope that the few issues that we have raised in the General Laws Amendment Bill; understanding that some of them may not necessarily be consequential will be taken on board by the Minister. I thank you.
- GONESE: Thank you very much Mr. Speaker Sir, for affording me this opportunity to debate the Bill that has been brought to this august House by the Hon. Vice President and Minister of Justice, Legal and Parliamentary Affairs.
Mr. Speaker Sir, I am happy that at long last we now have the General Laws Amendment Bill before us. The people of Zimbabwe were getting worried as to when and whether this Bill was going to see the light of the day. As you will recall, the new Constitution came into effect on 22nd May, 2013 and thereafter, we had our elections. I think it was on 31st July 2013, then we had the Eighth Parliament. It has taken almost two years for this Bill to be brought to this august House. This Bill was gazetted on 8th May, 2015 as the hon. Vice President has already pointed out, they have identified plus/minus 400 pieces of legislation that need to be aligned to the new Constitution.
While I appreciate the efforts that have been made by the Executive in bringing about 126 Bills, my concern is that at the rate at which we are going, if we look at us taking almost two years to have these 126 Bills that are before us today. My simple arithmetic tells me that what has been brought before us is actually less than a third of the Bills that need to be aligned. What it means in effect is that if we are going to proceed at the same rate, we are going to take something like nearly two years again to come up with another 126 or so pieces of legislation.
What it means is that we may actually come to the end of this Parliament in 2018 before we have amended all the pieces of legislation that need to be amended. I would like to exhort the Executive to speed up the whole process so that we do not take another four years in order to complete the process. That is the first point I would like to make Mr. Speaker, that we now need to proceed with utmost speed because unfortunately, when we came up with the new Constitution; we did not put specific timelines as a result of which there is or could be some laxity. At this point in time, we need to ensure that we complete the process as soon as possible.
The other concern that I have is that we have this omnibus Bill which is in fact a bamba zonke. There is nothing wrong when you have got a minor amendment but however, when you have got amendments that are of a contentious nature, I would submit that it would be preferable to have a situation where you have separate amendment Bills as we had with the Criminal Procedure and Evidence Amendment Bill. I would submit that when you look at the memorandum of the General Laws Amendment Bill, it refers to what it calls the more important amendments which are the amendments to the Interpretation Act; amendments to the Privileges, Immunities and Powers of Parliament Act; amendment to the Electoral Act and amendments to the Trademarks Act.
I want to suggest that it was better to have brought the amendments to those important Bills separately so that the people of Zimbabwe will have an adequate opportunity to discuss and debate those specific amendments which are of a far reaching nature so that you would leave only those minor amendments where you are making minor corrections to the names for instance, so that they fall in line with what is provided for in the Constitution.
I also want to suggest that in relation to the Criminal Code, I think my colleague here Hon. Misihairabwi-Mushonga was talking about amendments to various aspects, particularly when we look at the age of consent. I believe that those are of a major nature; it would have been better for them to have been dealt with separately so that people are able to make appropriate representations and the Minister will be able to make adequate responses.
Then we also look at the Trademarks Act, when my colleague Hon. Majome presented the report, she mentioned some of the reservations that were expressed by legal practitioners regarding that particular amendment. I believe that it would have been appropriate for that to have been dealt with on its own without being muddled with the other amendments that are of a minor nature. Having made those general comments, I would like now to make some general comments on the Bill, particularly in so far as it relates to some of the more important, to quote the words that are used in the Memorandum, ‘Acts which are being sought to be amended.’
Firstly Mr. Speaker Sir, I will refer to the amendments on the Interpretation Act. Obviously, these are very welcome and it is very necessary to ensure that what we have in our legislation is aligned to what is in the supreme law, which is the Constitution. I believe that these amendments are very welcome. However, the minor concern is the omission of some amendments that should have been made at the same time. Bearing in mind that this Bill has taken almost two years to be brought to this august House, one would have assumed that the ministry would have done a better job in the sense that they would have identified all the amendments that had to be made to ensure that they are in conformity with what prevails in the Constitution.
I think that it is unacceptable that we have some glaring omissions that were also mentioned by the Chairperson of the Portfolio Committee. I suggest that the Vice President and Minister of Justice, Legal and Parliamentary Affairs must ensure that all these omissions are picked up and are adequately dealt with so that we do not have any situation where something is left out. One glaring omission is the change from the ‘Police Force’, to the ‘Police Service’ and any other, there are similar amendments and I will come to that later. At this point in time, allow me Mr. Speaker Sir, to examine the amendments to the Privileges and Powers of Parliament Act.
Mr. Speaker Sir, the Constitution in Section 148 is very clear and I would like to refer to the provisions which we all agreed to when we enacted this new Constitution. I believe that our intention was to ensure that never again will we have a situation where someone is going to be incarcerated as a result of a sentence passed by this Parliament. As a result, we were very specific and deliberate in formulating the provision which I am going to revert to. It is very expressed, in clear and unambiguous language because it says that ‘But no such Act may permit Parliament or its members or officers to impose any punishment in the nature of a criminal penalty other than a fine for breach of Privilege of
Contempt of Parliament’. You can never have clearer language Mr.
In the last Parliament, I am very sure that the members of COPAC, the Parliamentarians themselves, were very deliberate in ensuring that it is formulated in such a manner that Parliament does not have any power to send anyone to prison. That if anyone is in breach of either the rules of Parliament or guilty of any other contempt, the only penalty that can be imposed is that of a monetary nature, which is a fine. Having done that Mr. Speaker Sir, we are very disturbed that what this Bill is trying to do, is to bring the powers to incarcerate either the Members of
Parliament or any other person who might be in breach of Parliament. It is trying to bring it through the back door or even worse, through the window so that we now have any opportunity to reinstate what the
Constitution has taken away. I believe that, that is unacceptable Mr. Speaker Sir. I would like to implore the Hon. Vice President to appreciate this point.
There are means and ways to ensure that a fine is paid. We have situations where one can execute; a warrant of execution can be issued to enable the collection of a fine. What we have in the explanatory memorandum, is the fact that this might be cumbersome, difficult and so on, but I believe that when Parliament enacted this Constitution, was aware of that difficulty and that the mischief which we were trying to cure is that which allows Parliament to sit as a court of law and pass a sentence which includes incarceration. We decided that let that power be taken away and that sentences of incarceration, sentences where someone is going to serve time in prison are left to the ordinary courts of law and not to Parliament.
The attempt in this Bill, Mr. Speaker Sir, is to try to disguise that penalty and say that it is going to be imposed by a court of law but I want to point out that what it simply does is that if that alternative of imprisonment which would have been passed by Parliament is taken to a court of law, it is just a fait accompli. The court is not going to exercise any discretion whatsoever, the court has no power. What this Bill is simply seeking to do is ensure that the court is going to endorse that alternative sentence which would have been passed by Parliament in terms of the Bill. I believe that as Parliamentarians, we should resist that and ensure that the letter, intention and spirit of the Constitution is actually upheld to the extent that if anyone is guilty of any offence, then the only penalty that can be imposed is that of a fine.
Mr. Speaker Sir, there is also another strategy which has been used in the Bill; it is to impose what is called an administrative penalty. I believe that strictly speaking when you look at the formulation in the Bill; it is not actually an administrative penalty but a substantive one. I believe again that it is also another attempt to bring it, this time very glaring through the window and not even through the back door, to ensure that Parliament is now able to incarcerate people when in fact that was not the intention when we framed this Constitution.
Hon. Misiharabwi-Mushonga really put it graphically, because when you look at the provisions in the Bill, it is very clear on the powers of Parliament, that is in Clause 32, to imprison someone who is adjudged by Parliament to be guilty of contempt. The powers are very comprehensive to the extent that this period of imprisonment may actually last to the adjournment of the next sitting of the House or the prorogation or dissolution of Parliament, which is quite a long and considerable period. I therefore, Mr. Speaker Sir, believe that these provisions should be dropped so that we adhere to the spirit which is enunciated in the Constitution. I would also want to associate myself with the remarks of Hon. Majome when she adverted to the amendments of the Electoral Act. I think those have been adequately dealt with in the report of the Portfolio Committee.
However, allow me Mr. Speaker, to comment on the amendments to the Criminal Law Codification and Reform Act. One of the concerns which I have Mr. Speaker Sir, is the definition of aggravating circumstances which is extensively covered. My worry is that we are seeking to tie the court; I believe that we have got very experienced judicial officers. Over and above that, our new provisions which we have in the new Constitution ensure that we have got the best legal brains. If you look at the process which we are now going to use for the appointment of judges, I believe as most people also believe that we should allow the courts a discretion to really decide as to what constitutes aggravating circumstances, so that we as the Legislature do not try to define everything in such a way that the courts are left without any discretion.
In my earlier debate on the Criminal Procedure and Evidence Amendment Bill, I also pointed out Mr. Speaker Sir, that the issue of the death penalty is a very contentious one. Whilst I do understand where the hon. Vice President is coming from but the bottom line is that when we came up with the new Constitution, we made it very clear that this Constitution does not actually impose the death penalty but it allows that a law can be enacted which will provide for the death penalty.
In short, Mr. Speaker, we are not obliged to enact that law. We must be allowed some discretion, we must be able to have a debate around the issue so that as a people of Zimbabwe, then decide whether we believe that we should maintain the death penalty or we should do like what other countries have done and abolish it.
Unfortunately, Mr. Speaker, the way the Bill has come about, does not give us much latitude; it is almost like a fait accompli. We now find ourselves confounded with a situation where the death penalty is, to quote the words of my colleague here, being reintroduced. I believe that whilst as to whether the new Constitution has abolished the death penalty or not. In fact, in our own High Court, there are some judges who have actually interpreted it to mean that, because of the inconsistency between the provisions of the Constitution and those which permitted the death penalty to be imposed, in effect, the death penalty had fallen away.
I would not want to go into the debate on the merits and demerits of that debate, but I want to reiterate the point I made earlier on that; as Parliament, we are not obliged to enact that law. It is something which we should really allow the people of Zimbabwe to express their views. If it is in line with what most countries have done, the people of Zimbabwe have to come and say that, let us do away with the death penalty, so be it. The hon. Vice President is on record of having said that he personally is actually against the death penalty and I would expect him to lead this debate – [HON. MEMBERS: Hear, hear] - to advocate the abolition of the death penalty.
Mr. Speaker Sir, before I conclude, I just want to point out that there are some amendments which have not been adequately dealt with in the Bill. I want to bring them to the attention of the Vice President so that the Bill can be tightened up to ensure that all those amendments which need to be made are made.
- SPEAKER: Order. I have observed Hon. Gonese referring to the Hon. Vice President without the honorific term three times. Can you stick to what the Standing Orders says, hon. ministers or hon. Vice
President. Hon. Vice President is addressed as Honourable Vice
President and not Vice President.
- GONESE: I will make sure that, that will not happen again the hon. Vice President of the Republic of Zimbabwe. In the Prisons Act, I would say that there are some omissions and I would like to bring them to the attention of the hon. Vice President. The Prisons Act needs further amendments to replace the Preamble to the Act with the new one that sets out the relevant provisions of the Constitution. There is also need to replace references to the Prisons Service, the Commissioner of Prisons and note that the Act provides for a four-year term for the Commissioner General and this should be reflected so that it is in full conformity with the provisions of the Constitution. Bearing in mind that my time has run out, I would like to say that at this point in time, I rest my case. Thank you very much Mr. Speaker Sir.
- MANDIPAKA: Thank you very much Mr. Speaker Sir. I will be precise because I am very comfortable with the amendments that are being brought before this august House. Mr. Speaker Sir, let me begin by thanking the hon. Vice President for the effort shown so far in trying to bring the General Laws Amendment Bill before this august
House. Secondly, I also wish to thank the Committee led by Hon. Majome for being technically able to analyse the Bill and also consulting members of the public in line with the provisions of the Constitution.
Mr. Speaker Sir, what makes me stand up to add my voice is the assertion by Hon. Misihairabwi – Mushonga. I am always disturbed when she talks about fair regional representation. It is my view that it is not necessary for this august House to create unnecessary divisions on the basis of race, colour and regions. She cited that in our institutions in this country, we have lesser number of people coming from Matebeleland Region. I want to believe that this is not very true and factual. I happen to have been in the police force before I came to this Parliament where I appreciate and understand very well that we have very senior officers in the police force who come from Matebeleland
Region. A good example is Commissioner Ncube, who is third to the
Commissioner General of Police. We also have Commissioner General
Sibanda who comes from Matebeleland Region, who is second to Commissioner General Chihuri. There are many other senior officers, especially in the army and the police who have taken positions and come from that region.
My worry Mr. Speaker Sir is that we appreciate, in accordance with the Constitution that we are a unitary state and when we debate, it is not necessary to try and make an impression that there are certain people who are segregated. If you look at Section 18 of the
Constitution, it provides for fair regional representation, which means that the people of Zimbabwe have a general consensus that we should not segregate on lines of region, race and tribe. I think this country should be commended for that, thus it is not necessary to continue talking about regional segregation where it does not exist.
Lastly, Mr. Speaker Sir, I would like to say, the General Laws Amendment Bill that is being brought before this House and has looked at the Electoral Act and other Acts that are critical, is a welcome development and we are comfortable with the amendments. I thank you.
- CHAMISA: Thank you Mr. Speaker Sir for the opportunity to add my voice to this very important Bill before the House. Firstly, I just want to appreciate and thank the hon. Vice President for bringing this Bill. I appreciate that, this is what the nation has been waiting for. Unfortunately, in thanking the hon. Vice President, I also want to express what I would call my disappointment with what I believe to be the inadequacy and non-exhaustive approach that has been taken in addressing matters that ought to be addressed in conformity with the dictates of our Constitution.
Hon. Speaker Sir, I have noted the incompleteness of the work that has been done. I have also noted the piecemeal and perfunctory nature of the amendments. If you look at the amendments in terms of content and context, they are actually dealing with and delving on nonconsequential amendments when one looks at our Constitution and what ought to be done. In fact, I have come to the conclusion that most of the amendments in this Bill have nothing to do with the Constitution. The issues that have something to do with the Constitution have not been included in this Bill.
I have carefully looked at the Bill, it does what it does not – it promises what it does not deliver. Hon. Speaker Sir, I am saying this advisedly as I will articulate in my presentation. It is clear that certain core-amendments that are supposed to be effected into the Bill out of the Constitution, have not been handled. My view is that we were supposed to have a separate amendment to the court because of the comprehensive nature of amendments that we were supposed to have, especially on the Criminal Law Codification and Reform Act. We were supposed to deal with this aspect as a stand-alone. Having an omnibus approach to such an important element of our amendment is going to be very difficult for us to put absolute and adequate attention on the aspects that are supposed to be dealt with. I am saying this because you then look at Acts that have been omitted, especially things to do with the Amendment of AIPPA, Public Order and Security Act (POSA), especially on things that impugn on aspects that are covered in the Constitution, Sections 58, 59 and 61 around association and demonstration that are supposed to be amended to align it with the Constitution. Those aspects have not been tackled.
I may also want to delve into the Criminal Law Code. If you look at Section 31 as has already been articulated, it has been outlawed by the Constitutional Court. Pronouncements have been made and provisions have been declared unconstitutional in several respects. For us not to deal with that is trailing behind. I do not think that it is something that we would expect from our Government. For example, if you look at
Section 33, again it has been declared unconstitutional, just like Section
96 of the Code that deals with Criminal Defamation. The Constitutional Court has already made a determination. All we need to do as Parliament is to make sure that we are loyal to the constitutional interpretation. We are loyal to what the Constitution demands and dictates. We are lagging behind and that has not been addressed. This is what makes me conclude that indeed, the General Laws Amendment Bill does what it does not because it promises, wetting our appetite without delivering that which it promises, but I think it is a big issue and it has to be addressed.
I will not belabour the point on the sexual crimes against young people. I think it has been raised especially Sections 70, 71 and 72 that I will not waste your time hon. Speaker and hon. members as well as hon. Vice President, but there is the element on Part VIII. I thought the drafters were going to put significant input into this. Part VIII of the Code which deals with computer related crimes, modern technologies have come in. I thought we were going to have an amendment of that because you would find that we are not covered as a country, in line with not just the Constitution, but also the trends in technology. We were supposed to see some amendments in tandem with the trends that are taking place across the whole world.
I would also want to touch an aspect on the issue of the Electoral
Act. I want to appreciate the hon. Vice President for aligning it with the
Constitution in terms of the voter registration mandate, taking it from the Registrar General to ZEC. The problem is that the way it is drafted and couched, you still see the ghost of the Registrar General lingering and I do not know why? In the way it is drafted, the ghost is still there or at least if the ghost is not there, we can see that the elections are still being haunted by that ghost. I think it is an area that merits attention and consideration. Not only that, I have seen that there is a creative element in the Act that seeks to amend the Act to give particulars of the voters on the basis of gender, age, which is a very good element. I thought that if we were to go for these amendments, let us go full throttle instead of piecemeal.
We also need to introduce electronic and automatic voter registration, –[HON. MEMBERS: Hear, hear]- so that we are able to say since we have the citizens roll which is automatic and the database is there, we can just separate to say upon turning 18 years, the computer separates you so that you become automatically registered. So you are deemed an automatic and ordinary voter unless you prove otherwise to say I am not willing to vote, but it has to be automatic instead of people registering because things are not on this digital platform. I hope that the Vice President, as a techno savvy, will introduce this as I can see he has an iPod and very modern gadgets. I am sure that he will be able to help us to introduce that element to allow for this very important introduction.
I have also looked at the amendment that is on the inception of Communication Act. The Minister is given very sweeping powers in terms of the interception of communication but if you look at the Constitution, it reposes and gives us some important rights in terms of rights to privacy, Section 57 which is being undermined by the powers that the Minister was giving in terms of the interception of Communication Act. So I was also expecting that there would be an alignment so that we do not invade people’s privacy, bedrooms and people’s houses whether big or small. I think it is very important that we deal with that element to be consistent with the Constitution.
I also looked at the changes that have been put on the Urban Councils Act and the Rural District Councils Act. It is also very piecemeal. Section 278 of the Constitution seeks to give certain powers to the independent bodies away from the Minister in terms of interfering with Urban Councils Act or Rural District Councils Act that has not been done. I am hoping that this will also be handled and dealt with by the hon. Vice President to make sure that we are indeed in conformity with the dictates of the Constitution.
I also saw that there is an attempt to introduce the Labour Act and some amendments. Again, I thought it would be more appropriate to have a separate and stand alone approach to the Labour Act rather than to bring it as an omnibus amendment, because there are a lot of changes that are supposed to be brought, on how the Labour Court is acting and behaving vis-à-vis the High Court. The Judicial issues and jurisprudential issues have to be refined. I did a paper which I am ready to favour the hon. Vice President with to try and make life better for workers, expedite resolutions of labour disputes to the benefits of workers and to some extent, the employers.
Hon. Speaker Sir, my last point of intervention has to do with the issue of privileges. I am surprised that there has been this nicodemus sneaking in of a criminal penalty. It is unconstitutional because the
Constitution is very explicit as has already been said on Section 148 (2). There is an invention of a term called Administrative Penalty. There is nothing administrative when you send somebody to prison. I think it is language gymnastic that should not be permitted in drafting of this nature. It is nicodemously sneaking in the aspect of imprisonment. What it does is that it criminalises our debate, thinking, –[HON. MEMBERS: Hear, hear]- and the information we bring here as representatives and ambassadors of the people. We are not bringing our own ideas. We carry a Constituency and that is why we carry the title honourable. The honour is not just in us sitting on these benches. The honour is in the mandate that we carry. We have that pregnancy, please do not decapitate the pregnancy by trying to introduce –[HON. MEMBERS: Hear, hear]- this diabolic and satanic invention.
Hon. Speaker Sir, I am not suggesting that the hon. Vice President is–[AN HON. MEMBER: Inaudible interjection]- I am glad you are confirming that hon. that is what we are trying to do to say that you want to introduce an administrative penalty which is in fact a prison sentence. The way it works is that, if you are given a fine by Parliament, the way it is couched yes, Hon. Vice President …
- SPEAKER: Please address the Chair.
- CHAMISA: Sorry I wanted to clarify too the higher authority but I -[Laughter]-
- SPEAKER: Withdraw your comment.
- MARIDADI: On a point of order. According to the
Constitution and according to the Standing Rules and Orders, the Speaker of Parliament is the highest authority within the precincts. That is why even when the President of the Republic, His Excellency comes here, bows to the Speaker because the Speaker is the highest authority. I think the hon. member should withdraw and offer an apology, not only to the Speaker but to the nation and the Constitution. I thank you. –
[HON. MEMBERS: Hear, hear.]-
- SPEAKER: Do I take it that it was slip of the tongue.
- CHAMISA: Thank you Hon. Speaker Sir. My point Mr.
Speaker Sir, on this one is that it is my considered view that what the
Bill seeks to do is to say what is imposed as a fine. The Clerk of Parliament will then write or issue a certificate to the court which certificate is then going to be acted upon on the basis of the failure of a member to pay for that fine; then a two year imprisonment sentence being imposed. Here is the danger and this is where the stratagem has to be unlocked. The first element which you see that impacts the Constitution is that there is actually a violation of the right not to be detained without trial, we are not judicial officers. So once you then introduce it to say this sentence is going to be taken lock stock and barrel by the court as if somebody has gone through the due process is problematic because it then deals with Section 49 Sub Section 1 that says nobody can be tried without a fair trial. Not only that, you also have Section 56 which deals with protection of the Law. So, I think it is problematic constitutionally, to then try and introduce the issue of this administrative penalty. - [HON. MEMBERS: Hear, hear.]- I also said even the couching of it, to call it an administrative penalty when it is not; when you go into the jurisprudence not just of Zimbabwe but South Africa or any other country. Administrative penalties are actually supposed to be put as fines by administrative bodies for purposes of enforcing the payment of a particular due or obligation. But, when it becomes an imprisonment, that is why I said it borders on things that are unpalatable and I think that element has to be addressed because it is directly against the Constitution.
Let us insist on the fines that are in the Constitution and not try to then subvert or reverse the Constitution. As I have already said, this has the net effect of draining and subtracting from the competence of the Members of Parliament to come here and do what they are supposed to do. Across the whole world, Parliaments have certain obligations, duties but also have certain rights and privileges and these privileges cannot be taken away Hon. Speaker Sir, in this manner and this form –[HON MEMBERS: Hear, hear.]- and we call upon the Hon. Vice President as our defender, being the Leader of the House and our protector to protect, not only MPs but to also protect the Constitution –[HON. MEMBERS:
Hear, hear.]- and make sure that this provision is expunged from the Amendment that we seek to adopt.
Last but not least is the issue of the Trademark Act. I was looking at Section 97 (b) of that Act. I think it is Sub-Section 6 paragraph (b) that deals with giving powers to the Minister to amend an Act without necessarily involving the legislature. I think if you read it Hon. Vice
President, I can see you are shaking your head …
- SPEAKER: Please address the Chair.
- CHAMISA: Thank you very much the highest authority
Hon. Speaker Sir. – [Laughter] –
- SPEAKER: Is that with a tongue in cheek -[Laughter]-
- CHAMISA: In this House. I think my reading of that provision sends, perhaps it is drafting issue, but it sends the impression that the Minister is now taking the powers of Parliament especially, if he recognizes that there is a problem with our adherence or our alignment to the Madrid Protocol. As you know, the Madrid Protocol, once you register in Zimbabwe you register elsewhere and once you register elsewhere, you also register in Zimbabwe, which is a very progressive provision. But, I think the element of the Minister now in terms of the amendments has couched on the provision I have just indicated, I hope it will be sorted out.
Hon. Speaker Sir, I want to thank the Hon. Vice President. I hope that some of the observations we have made are going to be considered so that we built a better country which we are all happy about, celebrating our sovereignty. I thank you. – [HON. MEMBERS: Hear,
- MARIDADI: Thank you Hon. Speaker Sir. Let me join other hon. members in thanking the Hon. Vice President for bringing the Bill to Parliament for the alignment of our laws. Mr. Speaker Sir, I want to say looking, it is quite interesting to see that all the others that have debated are learned people and I am a layman. I will tackle it from a political stand point. I analyse this whole Bill, I realise that it is laden with political mischief and it exacerbates the toxicity that exists in our political environment. The reason I am saying that Mr. Speaker Sir, it appears that the drafters of this Bill know something that ordinary Zimbabweans and Members of Parliament do not know. It is drafted as if we are getting into an election earlier that 2018. That is how I look at
The reason I am saying this Mr. Speaker Sir, I will articulate. As a Parliament we cannot allow some of these things to pass because I was listening very carefully to the Vice President when he spoke about the actus non facit per illium per se that “you commit you an act of offence through another person, you have committed it to yourself”. So if we allow the Bill to go through, in its state as presented by the Hon. Vice President, it means this Parliament will be equally accountable to the people that we represent for a gross violation of their rights and the Constitution.
I am looking at Clause 17, of this Observers Accreditation
Committee. The Bill Mr. Speaker, proposes to increase the
Commission representative to five but still maintains four members of the Executive. Mr. Speaker Sir, I suppose these members of the
Executive are senior Government officials, like Ministers and/or Deputy Ministers, who are active participants in the election process and some of them are actually contesting the elections. For them to sit on this Observers Accreditation Committee is like getting somebody who is playing soccer with a whistle in their mouth as the referee. Someone is playing soccer as a defender and he has a whistle ready in their mouth that when a striker dribbles past, then they blow the whistle for an infringement. I think it is problematic. I think the independence of the Observers Accreditation Committee must be guaranteed and the way it is guaranteed is that members of the Executive must not participate on that Observers Committee. They must be removed totally.
I go onto Clause 33 and 34, repeal of Special voting provisions. Mr. Speaker Sir, the Bill talks about special voting provisions but it does not say what will happen to police officers and members of the army who are deployed and who will be on duty during the day of election. What is going to happen to their vote? What it means is that they have been is enfranchised, if I look at the Bill and if I have read it correctly.
The other mischief Mr. Speaker Sir, that I see in this Bill is that we talk about Section 67 (3) of the Constitution guarantees every adult citizen’s right to vote. When we debate in this Parliament, especially when we debate the economic situation of this country, Minister after Minister, including the Minister of Finance and Economic Development has spoken about the need to tap into the diaspora and get money. The
Bill is silent on giving the diasporans a vote and yet when you talk about getting money from the diaspora, we want their money but we do not want to give them a vote. Let us put our money where our mouths are. If you want money from the diaspora, I think they equally deserve a right to vote.
The other mischief that I see here Mr. Speaker, is the one of age of consent. We have been debating in this House, tinkering with whether it is age 13, 14 or 16 and it is making me sick. The Constitution says the legal age of maturity is 18 years. It is very clear, why should we continue to debate whether the age of consent should be 13, 14 or 16. It must be 18 years because that is what is provided for in the Constitution. You do not need to be a lawyer or a rocket scientist. I see the Minister is snoring, all you need is have common sense to realise that the legal age of majority is 18 years.
The issue of voter registration, the biggest point of contention in the last election of 2013 was voter registration slips. Why should we continue to talk about voter registration cards, certificates or whatever. In this country we have a whole Ministry of ICT that has a Deputy Minister, a Permanent Secretary and a whole bureaucracy yet we fail to register voters electronically so that all you do is simply walk in there and provide your thumb and you are allowed to vote. The hon. member has articulated exactly what must happen.
A person who is born in Zimbabwe and is a Zimbabwean, we know one day they are going to reach the age of 18 years. Automatically they should become a registered voter; unless they go to the authorities and say I do not want to be a voter. They should automatically be registered. The some goes with a passport and all the other identity documents. The moment you are born you must be able to get your national identification card and your passport. Why should you again go and queue to get the documents. Maybe you should tat the same time be able to get your party card.
Mr. Speaker, I contested for Mabvuku..
- SPEAKER: For which party?
- MARIDADI: There is a party of the present and the party of the future and you know exactly what I am talking about. Mr. Speaker, I had the unenviable task of going to Mt. Pleasant where there were two buses laden with people who had come to vote in Mt. Pleasant. They were all holding voter registration slips. These people were speaking a language which is foreign to Zimbabwe. They were claiming to be from Mt. Pleasant and yet none of them knew where Mt. Pleasant was.
Mr. Speaker Sir, for this Parliament to come and start discussing General Law amendments which talk about voter slips, I think that part of the Bill is taking us back into the woods, back into 1922. I implore the Vice President that Hon. Vice President Sir, we are living in 2015. Let us behave like people living in 2015. Our children now greet each other on Whatsapp. People who are herding cattle in the rural areas use cell phones. Why then should we talk about voter registration slips in 2018? We cannot allow that to happen and that is part of the political mischief I am talking about. That is the reason I am saying there are people somewhere, whether it is the drafters or whosoever it is who knows something that we do not know because the way this thing is crafted is like an election is coming tomorrow.
Hon. Majome was talking about the Vice President’s patience, I would like to thank him for being patient and allow members of the Committee to go, debate and present their report. I know he is very patient man. Looking at his political trajectory, he has shown a lot patience ever since he joined politics and I simply applaud him for that.
Having said that, I wish to say, Vice President these are my submissions and I do so respectfully and please, let us not bring toxicity to our politics which is already toxic. Mr. Speaker, with those few words I would like to thank you for giving me this opportunity.
THE VICE PRESIDENT AND MINISTER OF JUSTICE,
LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGAGWA): I thank you Mr. Speaker Sir. May I sincerely thank the Chairperson of the Portfolio Committee on Justice, Legal and Parliamentary Affairs for the comments they have made with regards to the General Laws Amendment Bill. I can see that the Committee looked at the Bill soberly and they made sober comments unlike some of the debaters who have debated here. At the end of the observations, they have made recommendations. The recommendations of the Committee - five in number and I would want to assure the Committee that the majority of the five recommendations, we shall deal with them in the Committee Stage and see whether we can take on board some of the sober recommendations which they make, in particular, in relation to the
Electoral Amendment Bill and the death penalty.
I just want to observe that this amendment Bill is an alignment amendment Bill. It is not creating any new laws at all. We are moving from old legislation, making sure that the old legislation is aligned to the new Constitution. That is the purpose we are doing, but I could see the other hon. member who said he was a layman, I excuse him because I realised that he was a layman when he was making his contribution. He could not make a distinction between what he wants done and the powers he has to do things and which he cannot do. He should realise that this is a legislature; he has no power at all to say whatever he wants shall happen. Collective responsibility is the theme of legislature. The voice of the majority shall prevail.
Before I leave the issue of death penalty which the Committee treated fairly accurately, I want to address the observations by two hon. members; Hon. Gonese who has gone out who made observations which I felt embarrassed that he was a learned a person. I clearly stated that after the coming into effect of the new Constitution in May 2013, it became necessary that the laws of the land be amended to align themselves to the Constitution. Upon examining what laws to amend, we put these laws into two categories. What we have brought in are consequential amendments, which means they are amendments to particular Acts of Parliament which does not in effect require the repealing of that particular Act of Parliament. This includes where there are changes of name – nomenclature has changed and minor changes have been affected as a result of the new position of the Constitution.
We identified in excess of 400 Acts of Parliament which require attention and that is a lot of work. Out of that, we have identified 126 Acts which require consequential amendments. What we have brought before Parliament are consequential amendments and not substantive amendments to the Act. We are repealing other Acts and we already have the Criminal Procedure and Evidence Amendment Bill which has been prompted again by aligning it to the new Constitution but my learned brother was not able to recognise that.
He felt we muddled. In fact, it was him who was muddled in understanding the Bill and the purpose of this amendment Bill. We will deal with most of the issues raised by the hon. member, when we come to the Committee Stage if he is still brave enough to raise those issues because it is possible that when he reflects over what he has said, reading the Hansard and the Constitution, the sections he was referring to are very explicit and I do not know how a learned person of his calibre and long standing lawyer would misunderstand Section 48 (2) which is very clear. He was reading quoting sections, perhaps he misquoted some of the sections. If what he meant is precisely what he thought he was meaning, then I ask that he goes back to read the sections again. They are very clear. On the issues raised by the hon. member, I have no doubt that when we come to the Committee Stage, let him raise those issues and we will reply appropriately in terms of the clauses.
There is also the issue about saying no, we must give absolute discretion to the judiciary. The legislature must always be very clear and it must always be express on what it intends to be done. Then the judiciary’s duty is to give interpretation to what we intend ourselves as the legislature. When we discover that what we had intended when interpreted by professionals like the judiciary is different from our intention, we amend until what we actually mean as a legislature is also what the judiciary will give interpretation to. We cannot say we should make laws and leave it in a manner where clarity of expression would be brought out by the judiciary - no. We should make sure ourselves that what we intend to legislate, we are clear about the intention which we want to make law about.
Hon Mandipaka, I thank you for your contribution. Then, Hon.
Chamisa, he was talking about satanic and diabolic. That is what he said. He said he is disappointed that we have been able to identify consequential issues which require alignment. Now, I have so much regard for Hon. Chamisa who has joined the learned fraternity. I have no doubt that the hon. member was not addressing what was on the table at all. What is on the table is aligning issues which are not consistent with the Constitution. We have to identify those issues which are inconsistent with the current Constitution and make them consistent with the Constitution. He addresses himself with issues which he would want corrected. That is not alignment. That is policy, where we have to bring in new issues, debate them, agree on a new position but currently we are not bringing anything new. We are only aligning the old Acts to the new Constitution.
Again, as regards the Electoral Act, as I have already indicated, out of the 400 identified areas which we shall attend to, we have identified 126 of the 400 which we consider are consequential. That is what we have brought to Parliament to pass. The balance are of two categories. One, we have to repeal some of the Acts and that work is on-going. The other is to have substantive amendments of some Acts. Those Acts will be brought here independently as we have done with the Criminal Procedure and Evidence Amendment Bill to debate. Those cannot be brought into this General Laws Amendment Bill which is dealing with minor alignment issues so that the hon. member should preserve his argument and thinking when we deal with specific issues where we are doing substantive amendments to particular Acts, then he becomes correct. Currently, no; he is not because he is applying himself beyond what is required for the current purpose.
I am happy that Hon. Maridadi confessed as he stood up and said that whatever mistake he is going to make he is a layman. For that reason, I will not really attack him –[Laughter]-
- CHAMISA: On a point of order. My point of order is to kindly ask Mr. Speaker Sir, and also advise the Hon. Vice President that when we raise points of debate, we are not expecting to be attacked. The impression that he gives is that we are candidates for attack when in fact what should be attacked are issues that have been raised and not the individual. This is what cultivates a positive spirit. He made a sweeping statement that nothing has been raised that is within the scope. He has not responded to the ‘trademarks’ issue we raised, the issue of privilege and the right to vote. For Parliament to retain its dignity, we must allow this mature approach from the leaders of Government and from leaders within Parliament. I hope this will be corrected.
- SPEAKER: Let us understand the English language in context. You attack an issue and that could be very academic but do not interpret attack in the physical sense. Otherwise you will be lost completely. The question of attack is contextual. It is merely meaning responding to.
- MNANGAGWA: Thank you very much for educating Hon. Chamisa who stood up to attack my presentation -[Laughter]- and I am attacking his presentation too -[Laughter]- and then he misunderstands, only when he speaks he thinks he understands. I am glad that the hon.
Speaker is wiser, far much wiser than the younger learned hon. member.
With regard to the issue of the trademarks, I have a list. I have made an observation because it is also one of the five points raised by the Committee. I have already said I will deal with it when we come to the Committee Stage but I can give a general reply and say, Zimbabwe has acceded to the Madrid Protocol and this is the way to go in the modern state. That is what we must do. So, we are going to do that one. As a matter of fact, yesterday the Madrid Protocol, €51 million was surplus which has been allocated to member states, Zimbabwe included as a result of us acceding to the Madrid Protocol. So it is a benefit and I am aware of law firms which are anxious to keep this in a parochial manner by keeping it in Zimbabwe, but no, we must rise up and join the progressive world. So I will deal with that when we come to the Committee Stage. It is a pity that the hon. young man is zealous and sometimes swallows before he chews [Laughter].
Hon. Maridadi, is speaking about accreditation of observers. I will reply to him when we come to the clause because indeed, I am also sure and believe that people who come to observe, it is the Executive which decides which nation or country comes to observe in Zimbabwe. I will deal with that when we come to the Committee Stage.
He has also brought forward the issue of the diaspora vote. This we debated thoroughly and I think for many weeks. I am sure he was not yet where he is now but the other colleagues who were in COPAC, we spent days and nights arguing on the diaspora vote. Currently, we are only aligning that which is in the old Electoral Act to the Constitution. The debate on whether the diaspora vote is going to be accepted or not, is continuing. That is not what we are doing now. We are only aligning things which we are required to do now. That is what we are doing. Substantive debate on that issue continues to be debate between, not only parties, but the country as a whole, whether it is acceptable for us to have people in the diaspora to vote or not. Some say yes, some no and that is the debate we must continue to have.
Then on voter registration, he says that – Mr. Speaker Sir, he is correct except that he is not up-to-date with information. Hon. Member, to be up-to-date realises that, that is what we are achieving and it is not an event but a process to achieve, moving away from manual registration to electronic. We have said so and Justice Makarau has said so many times. That is what we are doing or what they are doing to achieve that. Equipment is being bought and people are being trained. It is not an event like having dinner [Laughter]. So, I would like to assure him that I share what he is saying except that it cannot be achieved overnight.
With that I – [MS. T. KHUMALO: Ko zvevana?] – it is listed under the report and I have said that we have to debate and agree on the age – [HON. MEMBERS: Hear, hear.] - [MR. CHAMISA: What of urban councils?] – Yes, again on the urban councils, we are only making alignment of the old laws to the current Constitution. There are issues like those raised by Hon. Misihairabwi-Mushonga relating to local governance and so on, that is a totally substantive debate on why the laws have underestimated provincial councils but that is the issue we are currently dealing with. Just now, we are aligning – [AN HON. MEMBER: Ko yaMinister?] – I am not sure what he is talking about but when we come to the clause, identify where you think it is not correct. If you think you are correct and we will grant you, but if you are not, I will tell you that I am attacking your misunderstanding [Laughter].
Motion put and agreed to.
Bill read a second time.
Committee Stage: Wednesday, 14th October, 2015.
CRIMINAL PROCEDURE AND EVIDENCE AMENDMENT BILL,
[H.B. 2, 2015]
Second Order read: Adjourned debate on motion on the Second Reading of the Criminal Procedure and Evidence Amendment Bill [H.B.
Question again proposed.
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGAGWA): Mr. Speaker Sir, debate on the Second Reading was done and I therefore move that the Bill be read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
- GONESE: Thank you very much Mr. Speaker Sir. Since
the Bill has just been read a second time today and it means that as a House we have passed it now. We are not asking for more debate.
During the Second Reading it is where we as the House agree that the Bill be read a second time. I am not talking about the debate which we had last week. What we have done now is to say yes we have agreed with the general principles of the Bill and we now want to go to the next stage which is the Committee Stage.
- SPEAKER: Hon. member, I put the question and the Bill has been read a second time.
- GONESE: Yes I agree, it is about the Committee Stage before the House goes into Committee.
- SPEAKER: What are you saying about the Committee Stage?
- GONESE: I am requesting that we have the Committee Stage tomorrow because that is when members can propose amendments and those amendments have to be put in writing and placed on the Order Paper as the Speaker very well knows.
The Standing Orders actually say that with the leave of the House a
Bill can go to next stage, which is the Committee Stage. I am not objecting for the sake of objecting but I am trying to have a situation where the Portfolio Committee has made suggestions and if those suggestions are to be actualised into something tangible, those amendments have to be put to the Papers Office so that they appear on the Order Paper. The hon. Vice President also indicated that he would be amenable to some of the suggestions and we do not know now because when you look at the Order Paper for today, there are no proposed amendments at all. So, we do not know, unless I missed something. I have not noticed if there are any. If there are no proposed amendments on the Order Paper, it simply means that we have not had time but if they are there, it might mean that I have missed them.
If they are not there it means that hon. members, if the Minister is not going to take them on board, we now want an opportunity to do it today. We send them to the Journals Office, they are then put on the Order Paper and then we motivate debate on whatever changes we want to propose to the hon. Vice President. That is all that I am requesting. I am not objecting to the Second Reading but to having the Committee
Stage on the same day as the Second Reading.
- SPEAKER: Point taken.
- MNANGAGWA: I hear Mr. Speaker Sir what the hon.
member is saying. It was very clear last week and I have been giving them opportunity left, right and centre for them to put amendments and when we go into Committee Stage Mr. Speaker Sir, it is possible that other members may find areas, clause by clause where they may want amendments to be done. If I am agreeable, we will agree and the amendment that would have been proposed. Then on the following day, we cannot conclude, we have to have the amendments put on the Order Paper because they would have been debated and accepted. We put them there and then we proceed again on the following day or any other day fixed for us to deal with the amendments but, at this stage the House must now go into Committee. What he might have requested perhaps was that, he is seeking the leave or indulgence of the House that the Committee Stage be adjourned to tomorrow, then I would have no problem then tomorrow we will continue. But, if he already has amendments ready, he has to go to the Journals Office where I can have them put on the Order Paper but as we go through the Bill, there are various clauses which hon. members, even from my side, may want to make some amendments as a result of the report given by the Committee. We are going to put them on the Order Paper but it is necessary to agree that we are not in Committee.
- SPEAKER: On the balance of probabilities, I think I will indulge the point by order from Hon. Gonese to have the amendments put on the Order Paper for tomorrow and those that may not do so as the hon. Vice President has indicated, will propose suggested amendments orally in addition to those that would have been written in the Order
Paper. The indulgence of the hon. Vice President is sought.
- MNANGAGWA: Mr. Speaker Sir, I move that the
Committee Stage be tomorrow.
Motion put and agreed to.
Committee: Wednesday, 14th October, 2015.
BUSINESS OF THE HOUSE
THE VICE PRESIDENT AND MINISTER OF JUSTICE,
LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGAGWA): Mr. Speaker Sir, I move that Order of the Day
Number 3 be stood over until the rest of the Orders of the Day have been disposed of.
Motion put and agreed to.
ADVERSE REPORT BY THE PARLIAMENTARY LEGAL
COMMITTEE ON STATUTORY INSTRUMENT NO. 77 OF 2015
Fourth Order read: Committee Stage: Adverse Report by the
Parliamentary Legal Committee on Statutory Instrument No. 77 of 2015.
House in Committee.
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARIAMENTARY AFFAIRS (MR.
MNANGAGWA): I move that the Chairman of the whole House
reports progress and seeks leave to sit again.
Committee to resume: Wednesday, 14th October, 2015.
On the motion of THE VICE PRESIDENT AND MINISTER
OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS (MR.
MNANGANGWA), the House adjourned at Twenty Minutes past Five o’clock p.m.