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NATIONAL ASSEMBLY HANSARD 18 FEBRUARY 2020 46 23
PARLIAMENT OF ZIMBABWE
Tuesday, 18th February, 2020.
The National Assembly met at a Quarter-past Two O’clock p.m.
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENTS BY THE HON. SPEAKER
COLLECTION OF SAMSUNG TABLETS
THE HON. SPEAKER: I wish to remind Hon. Members who
have not yet collected their Samsung Tablets, to collect them from officers from the ICT Department who will be stationed at the Members’ Dining hall during sitting hours. Those Members with challenges with connectivity to the wifi and passwords can also seek assistance from those officers.
Last week, I did announce that we were going to start today on our use of Tablets and because other Members have not got them, we extend that by another week.
MATTERS OF PRIVILEGE
FAMILY MEMBERS STRUCK TO DEATH BY LIGHTINING IN
HON. NKANI: Thank you Mr. Speaker Sir. On a sad note, I wish to advise this august House that five family members from my constituency, Chakari were yesterday evening struck by lightning and they all died on thespot. However, I wish to thank the Civil Protection Unit for their swift action because as I speak, they are on the ground to assist us. I thank you.
THE HON. SPEAKER: We pass our condolences to those members from your constituency.
DEATH OF PROF. KUWEWA
HON. RAIDZA: Thank you Mr. Speaker Sir. Good afternoon. My point of privilege is in regards to the passing away of Prof. Kurewa, the first Black Clerk of Parliament of Zimbabwe. My request is that, if it is well with you Mr. Speaker Sir, that we can observe a minute of silence. Thank you.
Hon. P. D. Sibanda having stood up before being recognised.
THE HON. SPEAKER: You do not stand up before I have
responded. Yes, I think it is proper that we recognise the contribution made by our first Black Clerk of Parliament from the early 80s until up to 1988. He served this Parliament extremely well before he became the founding Vice Chancellor of the Africa University. If we may stand and observe a minute of silence? May his soul rest in peace.
All Members observed a minute of silence.
+HON. MATHE: Thank you Mr Speaker Sir. My point of privilege is on the way Members handle themselves during proceedings, especially on Wednesdays when they know there is live television coverage. Most members spend most of the time debating on useless things just because they want to be seen on television when those members who have crucial questions that need to be addressed are not given enough time to do so. Mr Speaker Sir, with the powers vested in you please make it a point that those members that waste other peoples time here are dealt with decisively.
THE HON. SPEAKER: Hon. Member, you have stated the issue so well and I think everyone has heard. Therefore we are not going to repeat that tomorrow, Wednesday.
*HON. MADZIMURE: Mr. Speaker, as one of the representatives of the people standing for Kambuzuma, we are supposed, according to the Constitution, to know how the government is using its funds, also where the money is being used, and in terms of the law what is it supposed to be. In the past days I have been quizzed by the people in my constituency and their concern is on the issue of POLAD. They want to know what funding is being channelled towards POLAD.
They also want to understand what POLAD is to the Government and for how long it will be in existence. Furthermore they want to know that since POLAD has been there for some time, what results has it achieved. For that reason I request the Vice President Hon. Mohadi to come to this august House to explain to us the work of POLAD and the achievements attained since government funds are being channelled towards POLAD, whether it is a statutory body and if money channelled to POLAD has yielded any results. We have not allocated funds to POLAD in this House.
THE HON. SPEAKER: Hon. Member, a point of privilege
should be in relation to the rights of the MPs. So your point of privilege is misguided. If the Hon. Member is aware of the use of the money that he talked about and has proof, he should pose the question to the Minister of Finance tomorrow. So, for today that point of privilege is misguided.
HON. P.D. SIBANDA: My point of privilege is to convey the profound gratitude of the people of Binga to the CPU, various other well wishers and stakeholders that responded positively in our time of distress. I would like to thank all the stakeholders that managed to bring food, clothes and other requirements at the time of flooding and Government that brought various necessities at our time of need. I want to acknowledge that currently most of the needs of the people that were affected by the flooding have been met save for accommodation. As I speak, even the tents required to temporarily accommodate the people whose homes have been destroyed have not yet been supplied.
As a result, the victims of the floods are still staying with relatives because there is nothing that has been provided for them to be accommodated temporarily. It is my humble request to this House that we are generally as Members of Parliament known for requesting
Government to purchase for us land cruisers and other expensive things. I think we need to turn the leaf and this is an opportunity for the House to take into consideration the fact that we are the people’s representatives and that we care and love the people. I therefore propose Hon. Speaker that if each Member of this House can contribute a bag of cement and one IBR sheet, we can construct at least two roomed houses for the over 50 households that lost their homes due to flooding. What that means is that it is significant in the sense that the citizens that have been viewing us as a greedy lot of leaders will then begin to view us as leaders that care.
I am raising it now because it has affected my constituency but I believe that even if another constituency were to be affected in the future, it is good that we do the same kind of act.
Let me say Hon. Speaker, from the Caucus on the left side of your
House, that position has already been adopted and we have agreed as Members of Parliament from the MDC Caucus that we donate a bag and an IBR sheet each person, but however I thought the people that were affected do not belong to one political party and for once, it is important that we take a bipartisan approach towards the need of our citizens.
Members that are willing to do that donation may do that to Hon. Watson. She is collecting on behalf of the people of Binga. I thank you Hon. Speaker.
THE HON. SPEAKER: Thank you very much for your point of privilege Hon. Sibanda. Do not put the cart before the horse. Your point of privilege should have pointed to your appeal to this august House and from the experience that we had when Cyclone Idai caused ravages in Manicaland, particularly Chimanimani and some parts of Chipinge and parts of Masvingo, we responded as the Parliament of Zimbabwe. I want that procedure to be respected otherwise there will be some misunderstanding whereby you begin to bring in the question of bi-partisan. The matter must arise through the proper channels of this House as you did for the affected areas in some parts of Manicaland and Zaka and it was organised under the Administration of Parliament.
So I want us to follow the same route and the coordinator in this particular case is the Clerk of Parliament. You do exactly what you did by your contributions for the common good when Cyclone Idai happened. Otherwise if tomorrow it happens in a ZANU PF constituency we start appointing some Member from ZANU PF, that does not reflect the institutional position of Parliament – [HON.
MEMBERS: Inaudible interjections] – Order!
Having said that, your initiative is appreciated, but redirect it to the Clerk of Parliament for all Members of Parliament and that way we will be better coordinated.
HON. P. D. SIBANDA: I appreciate Hon. Speaker, your direction. I think the major point in my appeal was to indicate that maybe Hon. Members might want to donate clothes. While we now have got sufficient clothes, our real need is to build permanent structures for those people that were affected. Therefore, that is why my appeal is on cement and IBR sheets. Thank you Hon. Speaker – [HON.
MEMBERS: Inaudible interjections] –
THE HON. SPEAKER: Order, order. I thought I was very clear in my Queen’s language. I said your proposal is excellent but it lacked proper direction. Let us be coordinated through the office of the Clerk of Parliament. That is all. Thank you.
*HON. K. PARADZA: Thank you Mr. Speaker Sir. I have heard the Honourable Member thanking the CPU on the work that they have done but Hon. Speaker, I am not happy because two weeks ago there was a gold panner in Chinhoyi where a mine collapsed on him as he was panning for gold but up to now, he is still under the rubble. The CPU is failing to get an excavator to dig him out.
Other companies like ZIMPLATS have chipped in with diesel but they are saying they do not have anything and the person is still underground. So Mr. Speaker, I can say that as a Government we do not have money to hire machinery that will dig underground so that this boy’s body can be retrieved. Some are thinking that we should just bury him there because we have tried everything but as a Government together with the CPU, we should look for machinery that will help retrieve the body of that boy. Thank you Mr. Speaker.
*THE HON. SPEAKER: We are very sorry about that story.
I kindly ask you Hon. Paradza, that you should ask that question tomorrow during question time so that we hear what the Government will say about the issue. Thank you.
BUSINESS OF THE HOUSE
HON. TOGAREPI: Hon. Speaker, I move that Orders of the
Day, Numbers 1 to 7 be stood over until Order of the Day, Number 8 has been disposed of.
HON. CHOMBO: I second.
Motion put and agreed to.
REPORT OF THE PRIVILEGES COMMITTEE ON ALLEGATIONS OF CORRUPTION RAISED AGAINST HON. T. MLISWA, HON.
CHIKOMBA, HON. NDEBELE AND HON. P.D. SIBANDA
Eighth Order read: Adjourned debate on motion on the report of the Privileges Committee on allegations of soliciting for a bribe raised against Hon. Mliswa and other three members.
Question again proposed.
Hon. Mliswa having stood up to debate – [HON. MEMBERS: We cannot hear.] –
THE HON. SPEAKER: How can you hear when you are making
noise? I proceed, you must listen. In terms of our regulations, a Member who has been accused has a right to respond. I therefore call upon the accused Hon. Members to respond.
HON. T. MLISWA: Thank you very much Mr. Speaker Sir and a very good afternoon to you. Mr. Speaker Sir, as one of the accused persons in this matter, my response is as follows:-
On the 6th of March, 2019, I was called upon by the Parliamentary Privileges Committee on enquiry into allegations of corruption, it being alleged that I solicited a bribe from Mr. Goddard as a facilitation fee to enable J R Goddard Contract (Pvt) Ltd to secure a mining contract at Hwange Colliery Company. After the full enquiry, it was found that there was insufficient evidence that I solicited for a bribe and that there was a breach of privilege or contempt of Parliament.
Despite the fact that the Committee exonerated me on this matter, I was called upon to answer to the Parliamentary Privileges Committee and they made some unfavorable recommendations against me and pronounced deterrent measures. The recommendation was that my behaviour was inconsistent with Parliamentary decorum. Mr. Speaker Sir, when you are found guilty, I think you expect to be charged but if you are not guilty, why should you be charged?
The report was very clear Mr. Speaker Sir, that I did not commit a crime. The so called complainant Mr. Goddard equally appeared before the Committee itself and totally said I never spoke to him about it and I never raised the issue. What disturbs me though is that after all that evidence presented before the Committee, they still found fault and on the issue of soliciting for a bribe. We want to talk about the decorum of Parliament. Parliament is governed by rules.
Mr. Speaker Sir, for as long as there is no rule that points to the fact that I was inconsistent with Parliament decorum, then it is mere speculation. The Committee was supposed to cite the relevant Standing Rules and Orders that say that I was inconsistent with Parliamentary decorum but there was no such. I still challenge even in the report, I tried to go through it myself to see how best I could counter it but still I have not seen anything Mr. Speaker Sir. It is my careful considered view that the recommendations and the deterrent measures therefore, were tantamount to convicting me and consequently imposing a sentence.
Mr. Speaker Sir, it is important that Parliament understands that we equally have lives after Parliament. We have businesses that we were running before we were Members of Parliament which we continue to run. We have got farms that we still run and we represent people. I have never seen a problem in anybody approaching me as a Member of Parliament with an issue that they have. The problem only arises when the issue brought before you is inconsistent with Parliamentary decorum. I meet a lot of people every day, I talk to a lot of people every day and they have a right to talk to me. I have never at all used any information that they give me to my benefit.
We represent people from a national perspective. It is well known that I speak, whether I am a loud mouth, whether I am controversial but people can decide whether the loud mouth is the one that they want to talk to about a certain issue. We can only be better informed in
Parliament if we are talking to people. There is no rule in Parliament that says we cannot engage people after Parliament and as such, I demand that if Parliament does not want us to talk to anyone outside Parliament, there must be able to put a rule which governs us from that. Somebody can call me and say I want to see you, maybe it is an emergency to say Hon. Member, there are ten people who want to kill you or there are ten people who want to kill His Excellency, the President or the Speaker of
Parliament. How can I know that if I do not give them that opportunity?
What should be important is the action that is taken thereafter. I see nothing wrong and I repeat that I will still do it if anybody comes to me seeking for advice. I will still see them and tell them my advice.
What is important is the action that I take. When I was approached on this issue, my action was very simple and it was actually consistent not inconsistent with Parliament decorum by referring them to the Minister of Justice, Legal and Parliamentary Affairs (Hon. Ziyambi) who was governing the Reconstruction Act and is the one who had appointed the administrator. So, what wrong did I do by having somebody coming to me saying I want to see you, can you help me in this matter, then I guided them to say no, I cannot help you, I have no powers to help you. This matter is for the Minister of Justice, Legal and Parliamentary Affairs who is the custodian for this Administration and Reconstruction Law which has come through. If anybody comes to me again, I will still do it, I will not stop that and that must be understood. My job as a Member of Parliament is to refer and guide people to the appropriate offices. When I was invited to this meeting, I was briefed to the point, they said what they wanted to say and I said unfortunately none of us have got the powers to do what you ask of us to do. This matter is before the Minister of Justice, Legal and Parliamentary Affairs who is responsible for administration. So, what is wrong with that? After that, I left. If anything, Parliament must commend me for having done this directing them to the appropriate office. For us to now be penalized for that then leaves quite an unfortunate issue because we must represent people...
THE HON. SPEAKER: Did you say for us or for myself?
HON. T. MLISWA: For myself.
THE HON. SPEAKER: That is alright.
HON. T. MLISWA: For myself Hon. Speaker Sir. So it is important that we are able to – [AN HON. MEMBER: Inaudible interjections.] – we as Parliament. That is what I am saying. I do not know if you want to be my English teacher. I already got Mr. Speaker who is a headmaster – [Laughter] -
THE HON. SPEAKER: Do not worry.
HON. T. MLISWA: Mr. Speaker Sir, the finding was contrary to the principles of natural justice and fairness.
THE HON. SPEAKER: You should have qualified the nick name on a lighter note.
HON. T. MLISWA: On a lighter note Hon. Speaker.
The finding was contrary to the principle of natural justice and fairness in particular, that a person cannot be convicted of a charge he was not facing unless the charge is amended. It is common cause that I was not called upon to answer to allegations of behaviour. That was inconsistent with Parliament decorum.
My allegation was soliciting a bribe. If at all that was a charge, it was supposed to appear on the charge sheet when we were given an opportunity to respond but it cannot be sneaked in the recommendation when we were not given to the fact that we had to respond to that. The law is very clear on the position that a court tribunal cannot convict a person of a charge other than which he has been charged with without the charge first being amended.
Reality is placed on the case of S. Moyo (1994) to ZL 24 (h) (State vs Moyo). It is important to note that there was no allegation against the decorum and conduct. The Committee was never mandated to inquire on my conduct and decorum. No evidence was laid to that effect neither was I called upon to give evidence. I have no doubt in my mind that if I was charged with it, I would have given a good defence of it.
The specific terms of reference of the Committee as captured on page 1 were as follows: The Committee was established on the 18th of February, 2019 by the Committee on Standing Rules and Orders of the
National Assembly to inquire into allegations of corruption against Hon.
- Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda. The Committee was mandated to inquire into the allegations and table a report to the National Assembly. That report was tabled and in that report being tabled, I was exonerated. At no point did the Committee charge us with the decorum of Parliament or our conduct.
Mr. Speaker Sir, the Committee which had been established on the 18th of February, 2019 by the Committee of Standing Rules and Orders of the National Assembly to inquire into allegations of corruption; it was into allegations of corruption and this is the charge sheet that we got.
They were to report into the allegations and table a report to the National Assembly. The issue of conduct and decorum was not placed on the charge sheet. As such, we now see it appearing as a charge and a verdict given without it being put there.
Further on page 2, the Committee states that it was established pursuant to Order 24 of the Standing Rules and Orders of the National Assembly. The terms of reference of the Committee were to inquire into the allegations of corruption against myself, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda. I specifically responded to the allegations that were made against myself, that it is soliciting for a bribe. The inquiry was carried out and the evidence was laid to establish the position of the allegations of corruption or soliciting for the bribe.
Further, in any event, the record shows that I was not aware of the agenda of the meeting. If I had gone to the meeting, knowing what the agenda was, then I was supposed to be told. The evidence presented before the Committee was very clear in that I was not told the agenda; I only knew about the agenda when I got there. When I knew of the agenda when I got there, there was no need for the meeting to continue; that is when we referred it to the Minister of Justice, Legal and
Parliamentary Affairs. In any event, the record shows that it was not a Committee meeting. We must be very clear Mr. Speaker Sir. What constitutes a Committee? I was actually disappointed with some of the members who did not understand how a Committee is constituted.
Whilst Parliament might sit outside Parliament, there is a procedure which is followed. There are letters written through the Clerk inviting people and so forth. So how on earth would people of that magnitude want to turn it into a Committee meeting because the Chairperson was there? By virtue of the Chairperson being there, was there a Committee Clerk? No there was no Committee Clerk. Was
there a quorum? There was no quorum. Was the Clerk written to about it? No. To me, what constitutes a Committee? We must understand and it is important that they are educated on this and they do not impose a situation of the Committee which was not there.
By being a Chairperson of the Committee, I am quite aware of my conduct and how Committees are carried out at the end of the day. Not in this way unless it is another Parliament but this Parliament with due respect, is run by rules and these should be adhered to and so forth.
More importantly, the record shows that once the issue for discussion was Hwange Colliery, I advised J. R. Goddard and Company that the Parliamentary Portfolio Committee on Mines had no jurisdiction that the issue referred and referred them to the Minister of Justice, Legal and Parliamentary Affairs. People might think that Parliamentary Committees have got power, it is the power that they think about but there is also the aspect which we must talk about which is having to lobby. Unfortunately, in this country, we only think of the word bribe.
The nationals of this country are prepared to lobby for whatever they want through whoever they believe is the right person to represent them.
Most of the questions that we get and we ask here, we get from our constituencies and from the nation at large. At no point are we told that if we have a question or if we are to be given a question or issue to raise in Parliament, we must follow a certain route. We come here; we raise the issues and you as the Chair, have the right to then adjudicate over any matter which you feel is not appropriate. Let us also understand that we have people who talk to us. I am walking on the street and one can say, Hon. Mliswa how are you? There is the issue of pensions; can you please bring it up in Parliament? What should I say to that person? That is what I want Parliament to guide us moving forward because since they think our behaviour is inconsistent with Parliamentary decorum, can they tell us what is consistent so that we follow that.
We are law abiding citizens and we have always followed the rules of Parliament but you cannot bring in rules which are not there.
THE HON. SPEAKER: Can you address yourself to the
Committee and not Parliament.
HON. T. MLISWA: I was addressing the Chair.
THE HON. SPEAKER: That is even better.
HON. T. MLISWA: That is even better. It is therefore surely surprising how a Committee came up with a conclusion as it did because the conduct itself does not fit in defining provisions of rule 16 (2) of Appendix (a) of the Standing Orders.
Paragraph 7.7 of the report notes that the Committee that met was discussing Hwange Colliery Company and the four accused Hon.
Members of Parliament contravened rule 16 (2) Appendix (a) of the
Standing Order. That observation constituted a misdirection in that the Committee erred in its interpretation of the law Mr. Speaker Sir. I will repeat, ‘That observation constituted a misdirection in that the committee erred in its interpretation of the law’. I suppose we all read the law differently at the end of the day but not according to that.
A reading and lateral interpretation of the said Rule shows that the
Rule does not create an offence …
THE HON. SPEAKER: Did you say ‘lateral or literal?’
HON. T. MLISWA: Literal yes, interpretation of the said Rule shows that the Rule does not create an offence or does not define a standard of behaviour that must be adhered to by Members of
Parliament. This is critical, it is a rule that is there and if we are found guilty or innocent – it must be premised on the rules.
Mr. Speaker Sir, the Standing Rules and Orders Committee must be able to ensure that some of the members in the Committee are well versed with these rules because it will create unnecessary panic and bring this Parliament to disrepute at the end of the day. I have got my name that I have to protect at the end of the day and the sad part is that after all this, nothing is said to clear my name, other than to point out to rules that do not apply. I do not have the time to go and explain to the ordinary person that I was exonerated. They still think that I sought for a bribe at the end of the day. It is important Mr. Speaker Sir that in us coming up with these recommendations, we are clear, thorough and able to ensure that the image of Members of Parliament remain intact. You do not buy integrity, dignity or reputation but you work for it and it can easily be destroyed. This is one way of some of my reputation being destroyed.
Why is it being destroyed? Is it because I am outspoken and need to be smear-campaigned so that I lose credibility? It is not fair. When we are standing in this House, we try to represent people honestly … THE HON. SPEAKER: You have Three minutes Hon. Member.
HON. T. MLISWA: Thank you Mr. Speaker Sir … -[AN HON.
MEMBER: We can extend the time for you if you want?] – No, it is alright.
Instead, it is a defining provision that is incapable of being contravened both in fact and at law. It is therefore my humble submission Mr. Speaker Sir, that whilst the report clearly cleared me of soliciting for bribes as per charge sheet – it has not come out that way. They then went and found something that was not part of the charge sheet; they went against the very Standing Rules and Orders Committee that must guide them. We must be guided by the rules that appear before us.
Mr. Speaker Sir, let me conclude by saying that it is therefore my conclusion that the Findings by the committee is grossly unreasonable. I thank you.
THE HON. SPEAKER: In as far as you are concerned?
HON. T. MLISWA: Yes, in as far as I am concerned.
HON. NDEBELE: Thank Hon. Speaker for this opportunity to respond to our esteemed Committee Findings. Hon. Speaker allow me, at the first instance, to debunk certain falsehoods that are carried for truth in that report.
Hon. Speaker allow me to state truthfully that I only met Tundiya on the fateful day. If you read through the report, an impression is created that I had an occassion to meet Tundiya at the Bronte Hotel – I did not participate at such a meeting Hon. Speaker. It is also indicated in the same report that on the day that we met with Tundiya and Goddard – we were yet to visit the Hwange Colliery Company – this is not fact. We had already visited Hwange Colliery Company.
As has already been stated Hon. Mliswa, I wish to restate Hon. Speaker that when we met Tundiya and Goddard, we were not constituted as the Committee on Mines and Mining Development. We met Tundiya and Goddard in our individual capacities. At the hearing, the question of decorum was never laid at the table and an impression is creation that if Goddard intended to win a mining contract at Hwange
Colliery Company, we had the capacity or wherewithal to influence that. If you go to our Standing Rules, Standing Rule Number 20 and visit the rules of Committees of Parliament – such capacity is not canvassed.
I am the third accused in this matter Hon. Speaker and do not want to revisit how traumatic it is to our families, churches and members of our political parties to suddenly read about us in such bad light. It is very traumatic Hon. Speaker. I am aware of the allegations that are leveled against me in toto and I appeared before the Disciplinary Committee and adduced evidence that clearly exonerated me from the charge of solicitation. I even went a step further to assist the Committee in my response to Goddard’s affidavit.
I mentioned to them that the gentleman had called me the following morning and I had restated the law as it is. I played my part as a learned fellow in that meeting – I told Goddard that the Committee or the Hon. Members had no capacity to assist him because he had hijacked a meeting that was supposed to happen between Hon. Chikomba and Mr. Tundiya. So I stated to the Committee that they are even allowed at law, to go to POTRAZ and access a record of that communication so that they could listen in and read into everything that transpired.
So if the Committee did not do that then they missed an opportunity. It is highly likely that Goddard has been wining lucrative business contracts because he has been bribing people and in this case he failed. We gave the law to him as it is. I told him that the company was under reconstruction and therefore, anything to do with contracts was the preserve of the Minister of Justice, Legal and Parliamentary Affairs.
So, the Committee has not shown me where I erred. I have read in their report that they found me at fault for attending a meeting at night and practicing law at night … - [Laughter.] - When I came to you to support my application to study Law at the University of Zimbabwe, you said that ‘I would never live to regret that opportunity and this is it, I am
not regretting. No one not even Prof. Madhuku of POLAD ever told me that I am not supposed to consult at night so that I am lawyer by day and empty head by night.
I assisted this Committee by all means and their report says it all. Read the report. I urge Hon. Members to read the report again. It says it all. Even Goddard in all fairness recused me from these accusations. So, the Committee missed an opportunity, which opportunity I want to invite this august House to make good of. Let us invite Goddard. Let him sit there and have Members of Parliament quiz him on this matter
THE HON. SPEAKER: On my Chair! [HON. MEMBERS:
HON. NDEBELE: I want to take the whole House into my
confidence and explain what really transpired. Sometime last year, I was phoned by members of the CID. They had all these accusations and when I got there I said read the charge. It turned out that there was an attempt to separate me from three of my colleagues to say Annele you played no role in this. We want to use you as a star witness so that you testify against other Hon. Members. That is not how we operate. When we are here we see no divisions of this iron that because Hon. Chikomba is from the ruling party and I can easily sacrifice and tell lies on things that did not happen.
I have full respect for Hon. Chikomba as an adult and all the Hon. Members. So that attempt to use me as a star witness against others is wrong. This is not the Zimbabwe that we want to build and these are not examples we want to give to our children. So for my part, if I have to die I die, with pride because I fall with four other Hon. Members of Parliament. As the lawyer that I am, I was going to read a lot of case law on the doctrine of common purpose but I believe I have said enough. My invitation to you and the whole House is to accept the fact that no matter how much the snare was going for Hon. Mliswa for his outspokenness, no matter how much the snare was after my colleague Hon. P. D. Sibanda for his outspokenness, no matter how much the snare was out for Hon. Chikomba, I had to –[AN HON. MEMBER: For his richness]- You may want to say that because as his lawyer I agree because he is rich. I had to stand by the truth.
So I implore this House not to miss an opportunity to put a full stop to cartels by inviting Goddard to come and testify in this House. There is a general tendency because of our colonial past that when an old white man lies about a young black man, then that becomes the truth.
I implore this House to bring him here to answer questions. I thank you Hon. Speaker.
HON. P. D. SIBANDA: Hon. Speaker, I came unprepared to
respond today. I was not advised in advance that today is the day that I am responding. I have made a prepared response which, however, I did not bring with me. In order for me to be able to respond adequately and to refresh my mind to the Report that was produced by the Hon. Committee, I move that the debate be adjourned until Thursday when I will come ready to give my response. Thank you Hon. Speaker.
THE HON. SPEAKER: In all fairness, Hon. Chikomba and Hon.
Sibanda are given the opportunity to prepare themselves so that the matter is concluded on Thursday. In that regard, Hon. Sibanda has asked for the debate to be adjourned on this matter until Thursday.
HON. GONESE: I second.
Motion put and agreed to.
Debate to resume: Thursday, 20th February, 2020.
BUSINESS OF THE HOUSE
HON. MUTAMBISI: I move that the House reverts to Order of the Day No. 1.
Motion put and agreed to.
MARRIAGES BILL [H. B. 7, 2019]
First Order read: Adjourned debate on motion on the Second Reading of the Marriages Bill (H. B. 7, 2019).
HON. GONESE: Thank you very much Mr. Speaker Sir for
allowing me to add my voice to this very important debate. I would like to begin by saying that as all Hon. Members are aware, there was a lot of pandemonium and mayhem in this country upon the introduction of this Bill. Most of the hullaballoo was centred on the provision of Clause 40 (5) of that particular Bill. In fact, the Bill became colloquially known as the “small houses bill” that is how bad it became. However, I want to say that in my view, the main problem is that this matter was not handled properly. If the House will recall, the issue regarding the harmonisation of our marriage rules did not begin in 2019 when the Bill was gazetted but it has been on the table for a number of years. There was some impetus which was given to it after the landmark ruling in the
Constitutional Court in the case of Mudzuru and another vs the Minister of Justice, Legal and Parliamentary and others, which then made it categorically clear that people under the age of 18 could not contract valid marriages in line with the provisions of the constitutions which were adopted in 2013.
Further to that, in 2016 we had the SADC Model Law of Child Marriage which I had the privilege to move when I was still at the SADC Parliamentary Forum in Swaziland. One would have hoped that with that impetus we were going to have the bringing in of this Marriage Bill at the very latest in 2017. That did not happen. There was a lot of procrastination, hedging and fudging. One could tell clearly that the Executive was not fully committed to the issue and as a result, it took so long. However, when the time that the Bill was gazetted came to pass, one started wondering what the delay was all about. One would have hoped that with the time that they took they would have been more careful in terms of looking at all the fundamental issues. But alas, that was not the case and we all started wondering what they had been thinking about if they were thinking at all because eventually when the Bill was gazetted, it was very evident that not sufficient thought had been given not just to that clause as I am going to illustrate, but to the whole Bill itself. It left a lot of fundamental issues unanswered.
However, I will deal with that later.
I will just start with the hullaballoo about Clause 40, the civil partnership. The issue was about cohabiting and small houses. The reason why there was that hullaballoo is partly because our leaders do not lead by example. A lot of perceptions arose because it was felt that Members of the Executive in particular wanted to protect their small houses. That was the perception out there. This was not just confined to political leaders but even when you look at our judges, some of them have been living in polygamous marriages. Some of them have been living in polygamous marriages which only came out clearly at the death of some of the senior judges whom I shall not mention by name but is the problem. It is not just about judges and political leaders, even ministers of religion – a lot of people live double lives. They have got public lives which we all know about but some of them have private lives which we may or may not know about. In some of the situations some people’s private lives are conducted in a blaze of publicity as a result of which some of those people end up with a third life, a secret life which we will only know about after those people die when some children start surfacing who were not known and illustrate the point that people will have been living double lives. So I would like to say because of this particular background, the Bill was not understood clearly but the end result is a situation where we are going to throw away the child and the bath water.
I was privileged to be part of the subcommittee which travelled the length and breadth of this land trying to solicit the views of the public regarding what they felt about this particular Bill. It was very clear although the majority sentiment was that people were not supportive of that particular clause. However, we had some very critical views which came out in particular from the Zimbabwe Women Lawyers Association regarding some genuine cases where some people were being disadvantaged. If you look at the dynamics in our society, there is a clear imbalance between men and women and it is very evident that it is the women who are disadvantaged. As a result, some of these disadvantages will then be perpetuated and in particular, the Cabinet then overreacted by withdrawing Clause 40 when they have no such powers to do that. So, it is clear that there was panic in Government. They had not clearly thought about this particular clause and had not done enough consultations but then overreacted. The end result was that there may be some issues that could have been accommodated but as it stands, because of the sentiments which are in the country it becomes very difficult to attend to those issues.
I would like to say that the main problem which we have to correct as a nation is for us men, in particular to cease behaving in a hypocritical manner. There were Hon Members who were on the forefront of attacking Clause 40 yet they lead double lives which I alluded to earlier. Those are some of the very same people who have got concubines, who have got small houses yet they were at the forefront and going on the top of the mountain to condemn this particular clause.
As legislators, I do appreciate that it has now become extremely difficult to see how that particular provision can be accommodated. Cabinet, in its wisdom or lack of it, considering the fact that the majority of people in this country are Christians, the majority of the people in this country believe in the sanctity of marriage and for them to come up with such a sub clause like sub clause 5 which then says that in terms of its application it would even apply to situations where people were in civil partnerships even if one of the parties were married, was then the height of carelessness on the part of Cabinet. I lay the blame entirely on the Executive on some of these issues, particularly taking into account the length of time that they took before bringing this Bill into Parliament. It would have enabled them to do wider consultations to give more thought to some of the issues.
However the problem with this marriage Bill does not end with the now notorious or infamous Clause 40. There are a lot of other weaknesses in the Bill. I am happy that the Hon. Minister of Justice, Legal and Parliamentary Affairs has walked in while I am in the process of debating this Bill.
Let us start with issues of gender equality. You find that the Bill is totally silent about the issue of domicile in the matrimonial regime. Those who are lawyers in this House will appreciate that when we go to court the applicable law when parties are getting divorced or which regulates a marriage is the domicile of the husband irrespective of whether the wife is domiciled within the jurisdiction. When you go to court and you are seeking a divorce you have to establish the jurisdiction of the court by pointing out that the husband is a citizen of Zimbabwe, he was born in Zimbabwe, has always lived in Zimbabwe and he regards this country as his natural and permanent home.
However, I would have expected that in this era where we are advocating for gender equality we would have dealt with the issue of domicile so that we have equality between the genders, equality between men and women – [HON. MEMBERS: Inaudible interjections.] –
THE HON. DEPUTY SPEAKER: Order Hon. Members.
HON. GONESE: This is a lacuna; this is a gap that I hope the
Hon. Minister will apply his mind to.
There is also the other issue which came out clearly in the public hearings, the issue of property during the subsistence of a marriage. At the present moment Madam Speaker, women are disadvantaged. A man can sell a house without the knowledge of the woman. All those are issues which come under the issue of the matrimonial regime. A woman can only get an apportionment of property in terms of section 7 of the Matrimonial Causes Act upon divorce, but during the subsistence of the marriage the courts have been very innovative. We wanted a situation where considering the time that the Executive took in trying to consult, that they would have addressed their mind to the issue of property rights during the subsistence of the marriage and also issues that arise after the death of one of the parties, in particular the laws on inheritance and so on. I know that it is not really strictly speaking part of the marriage laws but because this is a far reaching Bill which is supposed to touch on critical aspects, I am disappointed that the Executive did not see it fit to really try to ventilate some of the issues particularly in regard to inheritance which caused a lot of problems; particularly when some of the hypocrites are the deceased, that is when we discover that not only did they have a second wife under customary law marriage in courts, they had also another small house, had another girlfriend somewhere, have numerous children who were not know, thus at the end of the day it causes a lot of problems in the winding up of the estates of those people. So those are some of the gaps which I believe should actually have been addressed by the Bill.
When we look at the definition of customary law Madam Speaker, it is too wide. It is in the definition section. It means the customary law of any section or community of Zimbabwe’s people. Now we have got many people. We have got Hindus in this country, we have got
Muslims. We do not know when it says Zimbabwe’s people, I believe that they are Zimbabwe’s people and the way that it is couched, it is not clear to me whether Islamic law which applies to those people who believe in Islam is now part of the customary law because that definition, I think for the purposes of this Bill is too wide and there is need for some clarity as to exactly what we mean by that.
Again Madam Speaker, we have got a very critical issue which was talked about. I know that it can be addressed at the Committee Stage but I would have expected the Minister of Justice, Legal and Parliamentary Affairs and his fellow members of the Executive, it is their collective responsibility to have anticipated this issue, to have applied their mind to it and that is the issue of the age of consent. There is now a mismatch between the age of consent to marriage which is 18 and the age of consent to sexual intercourse which remains at 16. I do not know whether at that Committee stage, the Hon. Minister has any intention to bring in an amendment to that effect.
THE HON. DEPUTY SPEAKER: Hon. Gonese, you are left
with five minutes.
HON. GONESE: Oh, and I have got so many issues to raise.
Anyway, I will try to summarise now. So in my respectful submission Madam Speaker, that is another issue which should have been addressed.
Look at Clause 43 Madam Speaker. It talks about recognition of marriages of foreigners. There is lack of clarity because you look at the heading; it talks of marriage of foreigners. You look at the content; it talks of a foreign marriage. Now, I do not understand. Are we talking about a marriage contracted outside Zimbabwe between people who are resident outside Zimbabwe, whatever their nationality or are we strictly speaking of a marriage between foreigners?
The confusion goes further Madam Speaker. You look at subclause (b), it says that the spouses were not related to each other on grounds of consanguinity. A lot of people may not know what this means. This refers to people who have got a common ancestor. In terms of our law, the general law, second cousins can actually marry but when we look at the doctrine of consanguinity which is referred to, it talks of a common ancestor and it does not explain how far back you can go. It can be seven or eight generations. Does it mean therefore that those people who would have contracted a marriage outside Zimbabwe, where those degrees of relationship in terms of consanguinity are not similar to our law, mean that marriage would be invalid in their countries of origin but valid in Zimbabwe or vice versa? So, that is something that we need clarity on so that you just do not refer to foreign marriages but you have clarity on what it actually entails.
Madam Speaker, you then have a situation that the provisions of this particular Bill actually claim that there is going to be a scenario where you cannot contract both a civil and a customary law marriage, but does not tell us what the consequences of such an event occurring are when we look at the nature of marriages. No person may be married under the general law and customary law at the same time. Does it mean Madam Speaker, that if you do that both marriages are invalid? That is a question which remains unanswered, or does it mean that one of the marriages is invalid and if so which one? So there is need for that clarity so that when this Bill comes into law people have an understanding of what it actually entails.
At the end of the day Madam Speaker, it is clear to me that this particular Bill has actually ignored some of the complex issues which affect members of our society, particularly the issue of property rights which I have already alluded to, particularly the issues relating to inheritance. It was important for the Hon. Minister and his colleagues not to try to sweep all these things under the carpet and try to avoid them by ignoring them. Those are the issues Madam Speaker. If the Hon.
Minister can pay attention to it and then work closely with members of Zimbabwean society so that we can fine tune the Bill to ensure that it addresses…
THE HON. DEPUTY SPEAKER: Order Hon. Members. May
the Hon. Member be heard in silence please?
HON. GONESE: So that it addresses all the concerns of the Zimbabwean society. Before I sit down Madam Speaker, I want to say that a lot of girls, a lot of women are disadvantaged and perhaps it is important after all has been said and done, for us to try to find a way to make sure that no one suffers exploitation at the hands of their other party and I know that is not going to be easily…
THE HON. DEPUTY SPEAKER: Your time has expired.
HON. GONESE: Yes, thank you. I am just going to say the last thing Madam Speaker. I want to say that if we had not rushed to bring this Bill, it would have been prudent to deal firstly with straight forward issues like child marriages and then leave the other issues for thorough debate to ensure that we do not have a Bill which is as limping as this one. I rest my case Madam Speaker.
HON. DR. LABODE: Madam Speaker Ma’am, I will touch on
Section 79 of the Marriages Bill but before I go there, I want to talk about the desire by the public and the Committee Report which says the public desires to move the age of consent to sex to 18. I want to bring to the attention of Hon. Members that once we move the age of consent for sex to 18, which is good, but then we need to also have a provision that allows 14. 15, 16 and 17 year-olds who are sexually active to assess health services so that they can access family planning. Otherwise we are opening a pandora’s box for teenage pregnancies because the fact is they are having sex but we want to console ourselves as their mothers and fathers and say they are not having sex. They are having sex, so let us protect them. I do not know where we are supposed to do that or whether this Bill can actually include this. It was demanded by the way by some youth. They said that if you are moving the age of consent to sex to 18, please ensure that us minors can access health services.
Let me now move on to Section 79 about criminalising willful transmission. This law of criminalising willful transmission was enacted before there was treatment for HIV. It was the only option the country and the rest of countries had. It meant to prohibit people from deliberately spreading the virus or to go round having a lot of partners, that was the reason but currently as we stand, Zimbabwe has a beautiful, fantastic programme of ART where we have over 3 million people on ART treatment. Once you are on ART treatment, you are less likely to spread the HIV. So, we need to consider that.
Madam Speaker, we are trying to put people on ART and we are trying to make people go for testing. You can only go for testing and tell your partner or your husband the results when you know that you will not get arrested but currently, if I am tested because I am pregnant, I will not tell my partner because my partner may run to the police and the Judge when judging my case but has no V 11, has no evidence as to whether I came with the HIV or the husband came with HIV but because I have been reported, I am the one who is going to Chikurubi. So, because of that, we really, really need to repeal this law.
Also, Zimbabwe is one of the countries with the highest number in Africa of people who have been arrested. Today we received a report from the Zimbabwe Lawyers for Human Rights, they told us that all these cases if you analyse them properly, you can tell that they were convicted on hearsay. The fact that I am sitting here and I go out with Hon. Mudarikwa who is HIV positive and I am diabetic – [Laughter] – and me who is diabetic and Hon. Mudarikwa who may not even know that he is HIV positive. He will not even know but he will pass on his virus to me who is already immunosuppressed because of diabetic, I will manifest before the person who has passed the virus to me. So, who has passed on the virus? It is me because I am the one manifesting so this law is a dangerous law.
Madam Speaker, do you know that last year we lost five MPs. All the MPs died of non-communicable diseases. Every one of us here can actually go to prison if care is not taken because of this law. All of us have a potential of being arrested because the law is so ambiguous, it is putting a judge in a very difficult position where he or she cannot prove who among the two people standing before him or her actually brought the sickness.
Madam Speaker, Zimbabwe is a signatory to the Sustainable Development Goals. Right now, I am told even other Chairpersons have been given documents. We have been given documents that we are supposed to review and monitor and return to the Speaker, explaining how far we have gone with our SDGs. In the SDGs, Zimbabwe declared one thing that we shall leave no one behind, be it in prison or not, you must access your treatment so that we reduce the virus from spreading. How are we going to reduce that virus if we keep throwing people in jail where we know their HIV prevalence is higher than the normal society? The normal society is sitting on 13% but prisons is sitting on 25 to 30%, which means something is happening in prisons that is causing that. So, we cannot now keep on arresting people and throwing them in that house again.
As we move towards the SDGs again, we have said by 2030, we shall ensure that 95% of Zimbabweans who are eligible to ART are on ART. Madam Speaker, 95% of Zimbabweans shall not be discriminated upon because of being HIV Positive. So, by keeping this law, we are blessing the discrimination which is happening. Madam Speaker
Ma’am, stigma has become huge. My Committee has met with sex workers on numerous occasions. They have said as sex workers, we are blamed for bringing the HIV but as sex workers, they can negotiate sex with a condom and they were saying that is why you find that as sex workers they can look after themselves but not the wives at home who cannot negotiate for sex from a husband who is having multiple partners. So, the stigma that comes is that people living with HIV are blamed for spreading HIV when they are not. They are living with HIV because they were tested and they declared openly that they are living with HIV. If we were to test ourselves here, we will be surprised what the prevalence rate will be. Maybe half of us are ailing. So you see the problems, we are potential spreaders of the virus.
Madam Speaker, I humbly ask Hon. Members to say for the sake of this country and for the sake of the treatment which we are getting free from the Global Fund, let us do the right thing. Let us repeal this law for the sake of our people. Thank you.
*HON. CHIKUNI: Thank you Madam Speaker. Let me add my
voice to the Marriages Bill. I want to talk about child marriages looking at the girl child. I suggest that the girl child can get married at the age of 18 and the boy child should get married at the age of 22. Let me emphasise the issue that when Government allows traditional leaders to solemnize marriages as marriage officers, they should be given adequate training so that they will discharge their duties with due diligence. I have also noted that an 18 year old is too young to get married. Some do not have national identity documents, and in some countries they are called stateless citizens. The other point is that traditional leaders should not allow those who do not have national identity documents to get married. This normally refers to children who are called stateless children because they are not registered and they do not have national identity documents.
So, it is important to know whether someone is married or not married and also there should be a database of all people who are married so that they can be a reference point. I would also like to indicate that Section 5 which speaks about civil partnership must not be put in the Marriages Bill because this is not marriage. In our tradition, marriage happens only when all rights have been performed. I would also like to indicate that those who want to register civil partnerships especially those who have multiple partners – this law must set free women who are in such partnerships. The other point is that young girls who are married off should also be allowed to go to school. However, some husbands have a tendency of prohibiting their wives from going to school. The law must allow young girls who are in marriages to go to school. Thank you Madam Speaker, these are my few words.
HON. MASANGO-CHINHAMO: Thank you Hon. Speaker. I
am here to add my voice on criminalisation of willful transmission of HIV. This was advocated for to protect mainly the women who were being affected more and more were dying. Little did those who advocated for this no that it will backfire and be used against women.
Listen to this scenario...
THE HON. DEPUTY SPEAKER: Hon. Masango-Chinhamo
please can you raise your voice or you can come to the front.
Hon. Masango-Chinhamo walked to the front bench.
HON. MASANGO-CHINHAMO: Thank you Hon. Speaker.
Listen to this scenario. A woman in general is health conscious. When she gets sick, she visits a health institution, when pregnant she is mandated to attend ante-natal clinic and there she will end up being tested for HIV. When a man gets ill, you have to force him to go to the clinic or hospital, it is like they believe that acknowledging that they are sick makes then somehow less of a man or it shows they are weak.
Looking at these two; man and a woman, the person who gets to know their HIV status first is a woman because as I said, they are health conscious. They then have to go and inform the man that they have been tested and are HIV positive. Men now are very clever Madam Speaker Maam, they rush to courts to report that they have been infected with HIV by the woman so the woman gets arrested. There is no way of knowing who infected who and when. In most cases, there is no proof of complainant’s HIV status which is produced in court because the provision does not require proof of HIV status from the complainant. Looking at other sexually transmitted infections like gonorrhea, syphilis et cetera, we have people infecting each other on a daily basis but it is not criminalised. Why? So, what is so special about criminalising HIV? We have a scenario of health conscious women who get tested first and very clever men who report to the court first even if they are the ones who infected the women. Just analyzing this Hon. Speaker, I say no to criminalisation of HIV willful transmission. I thank you.
HON. WATSON: Thank you Madam Speaker for this opportunity
to also comment on the Marriages Bill. I would like to start by saying I am supporting what Hon. Gonese and Hon. Dr. Labode have said. We are members of the SADC region and so we are signatories to SADC
Protocols. SADC created the Model Law on Child Marriages in 2016. The Bill still is short in its attempt to eradicate child marriages and I feel that the Minister needs to make sure that the age of consent to sex and the age of marriage are aligned.
I also want to refer say that SADC has also called for the decriminalisation of HIV transmission and so I go to Section 53(2) of the Law and Section 79 of the Criminal Law Codification. Although public opinion was divided on the issue of the appeal of willful transmission, there is actually no evidence to suggest that that law and clause in our law has actually prevented the continued transmission. In fact, the law stigmatises to the extent that even a breast-feeding mother could be found guilty of willful transmission of HIV/AIDS. Stigma and bias against persons, adults and children living with HIV has actually prevented our success in eradicating new infections and stigma is reinforced by the continuation of Section 79 on willful transmission. It should be repealed. It prevents people from seeking treatment; it prevents people from being tested and keeps it as an internal problem which we as Zimbabweans need to actually come out, which we did, in a sense but we have not fully done. It leads to the selective enforcement actually of the law and therefore a miscarriage of justice. The investigating officers in these cases are themselves equally biased possibly, in terms of how they would investigate and apply the law.
There is difficulty equally in the word ‘empirical evidence’. How is the ‘empirical evidence’ defined or decided in order to create proof and an informed assessment actually of transmission and of risk to HIV infection.
Our Constitution calls on us as Zimbabweans to uphold human dignity. The dignity of women who are pregnant, who are tested should then have to reveal their status to their husbands who are then prosecuted in many ways. It is not actually being upheld. Therefore it is imperative that the Minister proceeds to repeal the law on willful transmission. Thank you.
*HON. SHONGEDZA: Thank you Madam Speaker. I want to
add a few words on the Marriage Bill. This Marriage Bill is saying that people who are HIV positive should be criminalized. This law should be repealed because it is disadvantaging the women. When women are pregnant, they go for ante-natal classes and are forced to undergo HIV testing. If they go back and tell their husbands, their marriages will be at stake and are the ones who suffer.
I am also appealing that if we repealed this law, there is the girlchild who is supposed to get married after attaining the age of eighteen because when they get married after eighteen years, they can look after their homes but if they are married young they will not be able to look after their homes. When they become pregnant they are prone to more complications to the extent that they can die. I want to thank you Madam
Speaker with those few words.
+HON. MAHLANGU: Thank you Madam Speaker for giving me
this opportunity. I want to add my voice on the issue of spreading HIV/AIDS. My point Madam Speaker is that most of the times the person who is on the wrong is the lady. When you are pregnant as a woman it is required that you should go for HIV/AIDS testing and you look on the side of the man there is no same rule whereby it is a force matter for a man to be tested. As ladies, we become disadvantaged for at the end of the day, I am the one who is bringing the results back home. One can deny. There are times when they can agree to go and test and when they are negative during the window period, they can then blame me for my results that I would have brought home especially when I am pregnant.
After sometime when the father of the house has gone back for the tests, you realize that if the lady is positive they will then say as a lady you are the one who brought the disease and you get arrested. There is no proof that you are the one who brought the disease in the family.
Therefore, as women we are saying this should be removed so that we do not punish women. I know that we do not have any proof at the moment where we can track who brought the disease in the home.
*HON. MUDARIKWA: When I debate on this issue -as married men, it helps us that we should amend a lot of things. What I really want to work with is the marriage age of young girls. Child marriage is a problem in Zimbabwe because birth certificates can now be given at offices which are a distance. If a person is said to have married an underage without a birth certificate because the birth certificate is the start of everything. A lot of children do not have birth certificates. They are the ones who are getting married early so we should say that in those hospitals or schools, birth certificates should be issued within 24 hours so that it is easy for our parents.
This issue of child marriages - as a father of girls who are educated is not a good thing. Firstly, here it says that a child who is married being under – a child cannot look after a child, so this is not allowed and it is not good for a child to look after another child. This adds to the challenges that we have, but the problem of people getting married early is that you do not see a man who is married under 18, it only happens to girls because of poverty. We should tackle this issue of poverty. After that we should tackle the issue of education so that our people are well educated. We are not going to school so as to speak English but our people should learn to do skilful jobs so that they are able to look after themselves and will not be lured by sweets.
The other challenge that we have is that in our villages, families have broken down. The leaders are no longer there. The fathers and mothers are no longer there. There are no father and mother heads in the families because whatever happens in these homes they will not be any peace. Also, these churches should teach people on how important the families are, not how donations are important. We should also teach people that when it comes to falling in love, God is not involved as it only involves two people and God is not involved at all. What is happening in some religions is that some men are saying, ‘God says’, and when someone is as young as 15 to 16 years and someone says,
‘God says that you should fall in love with so and so’, and because of your love for God, you will end up falling for that person because the girl believes that is her entrance into heaven.
The other issue pertains to relatives especially the aunts – if the aunt is married and fails to conceive. She will take a young girl in order to support her family. So, you should not look for someone because marriage is not a cooperative. A lot of things happen when it comes to love affairs but it is our attitudes that is fueling all this. In Africa, we are propagating child marriages. There is an issue of challenges that are being faced by women in a polygamous marriage that they should be allowed to attend school – it is very important. Education is very important and should be encouraged for women to continue to be educated because they will be enlightened and have peace of mind.
Many a times when we encounter these challenges, you will find that children are staying with grandmothers whilst their mothers are in the towns. The grandmothers will not be having much control on the children but we want mothers to be together with their children because you love them. Some people said that those who are in polygamous relationships want them but we cannot have laws that limit polygamous marriages. The issue of having several wives sometimes helps because when you look at the population, we have more women as compared to men. So, when you refer to the Bible – it states that, ‘Go and multiply’.
As politicians, this is where we get our votes from. The children who are being born today will be voters come 2040 but we are saying that we should be pro-poor in our policies in this House. We need to verify how much is being channeled to the rural areas to help the girl child in the national budget? How much is going to assist mothers who are looking after their families because so many stages are involved in looking after children? When a mother is empowered then she has control over her children.
The other issue that we want to address is curbing child marriages. When you meet a girl, many a time as African men, we do not ask for the girl’s age but only ask for the totem – age does not come into play in a relationship. So there should be a system in place that we encourage people to steer clear from young girls. The system should also include church choirs that children under the age of 18 years old should not sing in the choirs. People should be made aware that under 18 year olds are still children and should not be approached in terms of love.
Many children are dying at child birth. Madam Speaker as Parliament, we should see what we can do. The responsible committee should come up with ways on how to stop child marriages. Our people, with the GMO type of foods that are locally available nowadays, if you are a big framed person then you will sire big children and short people will sire short people. Children who come across these challenges are sired by people like Hon. Porusingazi and myself, because we produce big babies. When they are in Form Four, they will be looking like grown-ups.
So, people should be taught through the Ministry of Primary and Secondary Education, our political parties and also marriage officers. In our churches that we have nowadays, some of them are promoting homosexuality that gays and lesbians should now be marriage officers. This is bad because we are encroaching on other cultures – hiding behind religion. If we allow that, we will find our population depleting.
So the influence of other cultures in our laws should be looked at and our law making process should also be looked at because we have voluntary organisations that have a hand in that because of their own interests. In our culture, a woman is married into a family and as black people; we remain as black people with our own cultural ways of living that are being spoiled by our current ways of living.
Finally, I want to thank people who are in marriages, those who are not in marriages and those who participated in marriage and are contributing in this debate. It shows that as Parliament we are doing what the people want because we have seen people who have not contributed now contributing, which means that what is taking place is what we should encourage that people should live together amicably and peacefully in their homes. I want to thank you Madam Speaker for giving me this opportunity to add my voice. So on this issue, you should ask those who have the experience. Thank you.
+HON. NKOMO: Thank you Madam Speaker for giving me this
opportunity. I would like to add a few words to what has already been said by others. In most cases men do not agree to marry the women that they live with, they divorce them or they run away. So what I am saying is that if couples live together for five to ten years, they should automatically be qualified to be taken as married or they should be forced to do so.
There is need to respect the marriage union and it should no longer be referred to as marriage union but customary marriage. When I say customary, I mean that it should be respected because most people look down upon this kind of union. In addition, there should be the creation of a database of all marriages such that we avoid people getting married over and over again with multiple partners. People should be allowed to marry just once and not twice or more than that. Thank you.
**HON. F. NCUBE: Thank you Madam Speaker for giving me
this opportunity to say something on this Marriage Bill. In civil partnerships, there must be clarity. Every marriage should be a standalone marriage to protect those who are not in these unions because we stand and we represent those who are not married and those who aspire to get married. All these people deserve protection under the law.
Looking again at the Marriages Bill which clarifies that young children cannot get married, there is a law which says that when young children are married or get into marriage, the law clearly says that they are allowed to opt out of such a marriage. As Government, we need to look at that issue. The Marriages Bill should be juxtaposed with SADC marriage law because you discover that when young girls are married – when they opt out of such marriages sometimes they are at a disadvantage. Thank you Madam Speaker.
*HON. ZEMURA: Thank you Hon. Speaker. I have heard a lot
that has been debated but I only have one thing which I did not hear of, which is the criminalisation of willful transmission of HIV/AIDs. This has come to me as a shock because these people will be in love when they infect each other. What we are seeing these days is that when some are being circumcised and the woman is not circumcised, it means they will be infecting each other because one is receiving and the other is passing on. We want this to be looked into.
They should live us like that. If we die, we die together in love. School going children are being followed; they are falling in love at school and the girl is not protected. The boy is protected through circumcision and so, that should be looked into because that is discrimination. What we are saying is that the boy is protected and the girl is left to die but besides that, let us analyse the marriages of these children. Children under 18 years are still very young and tender. They should be taught on how to prevent themselves.
If we allow them to engage in sexual activities, it means we have allowed them to die, but if we give them the protection so that they are protected it is far much better. What we are saying is that this marriage should be done culturally following our traditions. In Zimbabwe, when someone is married it means that the two families now know each other. These days people are just living together and you will know the other family when someone is sick which is not good. There should be a strong law which governs marriages to be respected according to our culture. Even those on civil marriages also want their families to participate.
Those who want to get married traditionally should get married culturally according to our tradition. Some are getting to know each other through ‘live-ins’ - that is not good. It should be stopped forthwith. In the western countries, they just stay together but in Zimbabwe we use our culture and tradition. Lobola must be paid and parents should know each other so that marriage is respected. We want marriages that are honoured so that children are known traditionally. Even if our chiefs are going to be marriage officers, they should marry couples according to our culture. The in-laws should know each other. We want things that promote our culture in Zimbabwe. Thank you.
*HON. RAIDZA: Thank you Madam Speaker. I would want to add my voice on the Marriages Bill. I would like to thank Hon. Members for the job they are doing towards the enacting of the Bill. Certain issues came up in different constituencies, like the issue of young girls getting married. We discovered that in most cases parents were involved in marrying off children. They even encourage children to get married. The Bill emphasises that whoever participates in such deeds will be prosecuted under the laws of the land.
The other point is that marriages are found in different constituencies in different areas. This is an advantage to those who are married, which means that everyone who is married can and should approach these marriage officers. We will be given 12 months to go and register marriages. This works in favour of the married couple and it will demystify marriage in such a manner that it will be clear whether one is married or not. However, when you are married, this should be registered. There should be evidence that you are married so that there are no dubious and devious men and women who go around claiming not to be married yet they will be married. However, in certain cases such people have been found to be married. Registering marriages eliminates such challenges. With such a database, a potential wife or husband can search for the name of their spouse so that they know their status. This will bring integrity to marriages because people will be afraid of being discovered.
At the moment, everyone is doing what they think is best for them. If the law passes, it will demystify such issues. The Marriages Bill comes at an opportune time when marriages will be registered and it will be clear as to whether one is married or not. The Marriages Bill will work in favour of bringing integrity to marriages. Madam Speaker, I would like to emphasise the point that this Bill comes at such an opportune time. Thank you Madam Speaker.
*HON. MASUKU: Thank you Madam Speaker. My point of view concerning the issue of marriage is that when a man comes to pay bride price, they should be told to get married there and then. If they just pay bride price and do not get married, by the end of the day they do not proceed to do so. In my own point of view, I think that this process of marriage should be done and handled on the same day that the man pays the bride price. Those are my views. Thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Madam Speaker. I move that the debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 19th February, 2020.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam
Speaker, I move that Orders of the Day, Numbers 2 to 34 on today’s Order Paper be stood over until Order Number 35 has been disposed of.
Motion put and agreed to.
ABOLITION OF DEATH PENALTY
HON. D. SIBANDA: I move the motion standing in my name
that this House;-
COGNISANT of the sanctity of the right to life and that it should be enjoyed by every human being;
FURTHER COGNISANT that some innocent people are given a
death penalty after they fail to defend themselves and prove their innocence in a court of law; and
AWARE that the death penalty has been a contentious issue the world over with a number of countries opting to scrap it from their statutes;
NOW, THEREFORE, calls upon the Executive to abolish the
HON. PARADZA: I second.
HON. D. SIBANDA: Thank you very much Madam Speaker. I
want to thank you for affording me this opportunity to discuss a very sensitive issue which cuts across the world. Madam Speaker, I want to stand here today as an abolitionist and I will talk about life. Life is a gift from God. Life is also number one in our fundamental rights in the bill of rights in our Constitution, Section 48 and also represent human dignity upon ourselves. No matter how many mistakes I make Madam Speaker, life will always be important; I will always treasure life.
Madam Speaker, we have since seen that for the past 12 years, there is no execution which has been done in Zimbabwe and we have got 81 of our own brothers, husbands, et cetera who are on the death row and nothing has happened. Nothing has been done to them in terms of execution, which then clearly shows that it will be much easier for Zimbabwe to follow the rest of the world.
Madam Speaker, some of those who are on the death row are not there because they have committed offences. They are there because of misjudging. Judges are also human beings and are bound to make mistakes just like anybody else. Madam Speaker, I have done several case studies. I have been to several countries following up issues of execution. At times as human beings, others will be executed because of political reasons. Those who are in control can control even the justice system then a death sentence is passed on an innocent person. Others are there because they simply cannot get representation, they have no one to represent them or they do not have monies to pay lawyers.
I always think of Mbuya Nehanda Madam Speaker, during the colonial era that if Mbuya Nehanda could have had a competent lawyer, maybe those who are older than us could have seen her. However, because there was no lawyer and whoever to stand for Mbuya Nehanda, there she was, she was executed. It can also be used by those who have got the power to fix those without power and cannot defend themselves.
As a Christian, I remind the hon. House that when God creates, he does not create junk, he creates human beings and life is like a present from God and should be treasured. Mistakes are done, if you look at these days because of poverty, people are not working; they do all sorts of things and make mistakes. They are therefore executed. Most of our children now are misusing drugs and there are cultural drawbacks and unemployment which can lead someone to make huge mistakes in such a way that at the end of the day, they are executed.
Madam Speaker, I want to talk about the hidden victims which according to me are the little ones. The children of a father who is on a death row, how do they feel? Do they talk about it at school or in the community to say, our father is on a death row or is going to be executed? We have never heard them talk but we know they are there, how are they feeling at home, do they discuss it at home, how is it like? Even that person who is on the death row, how is he/she feeling? This is what I normally think of every time. I have had an opportunity of meeting one or two persons who were on the death row by mistake, it hurts if they tell their stories Madam Speaker. At the end of the day, if my father is executed, what will become of me, I then start begging in the streets. What does that mother or wife become when the breadwinner is gone maybe because of a mistaken judgment in the first place.
I therefore call for a moratorium for those who are on a death row, the 84, I had said 81, they are 84 who are on the death row. Considering that for the past 14 years, Zimbabwe had not executed, we therefore call for the Government to take it into their heart and think of the hidden victims, the children and families and forgive.
Madam Speaker, I would also like to invite my fellow colleagues who are here to be abolitionists and become one and find it in their hearts to join the rest of the world to say no to the death penalty. Killing will put an end to the opportunity to reform. We can find better ways of punishment like life imprisonment. I remember in Egypt at one time there was an outcry to say that they executed about 5 or10 people in a day and those who were executed were between the ages of 28 and below. Imagine that people can reform, they have killed a soldier, a lawyer, a teacher or someone who is productive. There is need for us as Zimbabwe to take cognisant of that. They can be trained whilst in prison, they can go to school and continue with education or be rehabilitated until they become better people.
I stand here Madam Speaker as a mother. We give birth as mothers and carry our little ones for 9 months, give birth and we do not kill. If someone is killed in Ndebele we say we get isihelo. Even if I am related to that person, the moment I hear that a person has been executed, I get that isihelo in Ndebele, which means that I will get those labour pains.
Madam Speaker I am happy that you are also a woman sitting on that Chair and you know the pains that I am talking about.
Noting that it has been 14 years, I am also glad that the Minister of Justice, Legal and Parliamentary Affairs is here and 14 years without execution in Zimbabwe also rings a bell. Madam Speaker, allow me to read my resolutions;
- I advocate for policy determination to abolish the death penalty;
- To call upon all Parliamentarians to promote human rights on the abolition of the death penalty;
- Need for Parliamentary networks, use of international networks and different organisations to end the death penalty;
- Need for political will to intervene; which is of paramount importance Madam Speaker;
- Call for moratorium to ensure that no life be taken until a proper assessment of the criminal justice system can be made.
- We commit to taking every legislative measure towards abolishing the death penalty entirely or removing mandatory capital punishment reducing the number of capital crimes and creating opportunities for rehabilitation instead of retribution;
- We commit to using our voices as representatives of our people to raise awareness about the death penalty in our constituencies and with our fellow citizens and in so doing, to fight misconceptions and unfounded arguments;
- Overally, we commit to using all our Parliamentary prerogatives and our privileged position to promote the human rights and abolition of the death penalty in our country and throughout the world.
Today, I take this opportunity to call upon our fellow
Parliamentarians to join the struggle. I invite my colleagues who are not abolitionists to promote the dialogue and listen to survivors of the death penalty and their families. To victims of crime, to judges and experts, let us open up and support the right of every human being to life and to dignity. Madam Speaker, before I sit down, I also want to say, judges are there as judges but who are we to judge harshly when God cannot judge us harshly? I thank you, ngiyabonga.
HON. PARADZA: Thank you very much Hon. Paradza. Madam Speaker, the death penalty is old-fashioned and should never be in our statutes. Why do I say that? You all know the story of our President; he was nearly hanged and so on. I happened to be in my other life as a journalist in 1995, I had a one-on-one interview with him and he said he does not want anything about the death penalty. So, we have a President who is against the death penalty. I think we should all support the scrapping of the death penalty in our statutes because the President is in full support of that. I am also in full support of that and we do not need it, it is archaic, old-fashioned or primitive and it must never ever be in our modern statutes. Thank you very much Madam Speaker.
HON. T. MOYO: Thank you Madam Speaker for giving me this
opportunity to support, to a very limited extent, the motion moved by Hon. D. Sibanda on the importance of abolishing the death penalty. I will say that death penalty should be abolished, particularly for political reasons. Our President was supposed to have been hanged but because of his age, death penalty was removed. So, I am saying death penalty can only be removed for people who will be incarcerated for political reasons.
However, to a very large extent, death penalty is very important to stay because we have witnessed several incidences of people who kill other people for no apparent reason. I will give an example of the Machete wielding people. At one time they killed five people in Mazowe, Kwekwe and Kadoma. It was by design to kill. Killing another person is ungodly, evil and devilish. The Bible is against killing another person; it says “Thou shall not kill”. History will judge us harshly if we allow people who kill other people for no apparent reason not to be hanged.
There is need for them to be hanged as a deterrent measure for those who would want to commit such crimes. It is the duty of the judiciary to assess different circumstances as they obtain on the ground. I heard Hon. D Sibanda saying that it is important to abolish the death penalty because some people will be innocent, they may not even afford lawyers.
However, those people who are tried for killing, everyone is represented. There are lawyers for human rights who would represent everyone who will be tried for murder. So I would argue and say that death penalty is important, particularly on situation where people would perpetrate violence. In some cases, we have seen atrocities being conducted on women and children particularly girls. Somebody would rape a girl of 12 or 14 years, nonagenarian woman in the 80’s is raped and killed. A case in point, what happened in Amiva, Chegutu where an old doctor, Octogenarian was killed together with his granddaughter aged 14.
So, we cannot allow these people not to be killed. Those who want to commit such atrocities; this will act as a deterrent measure. No one is absolved for killing. Killing is bad; it is a sin against humanity so it has to remain on our Constitution because death penalty is necessary as it would be prevent would be perpetrators for violence.
*HON. CHIKUKWA: Madam Speaker, I would like to talk about
the death penalty. My view point is that the Bible in the Old Testament says that if someone kills then they should equally be punished by death. However, in the New Testament, the Bible says that our sins were forgiven at Calvary.
When someone is accused of murder, if that person has a legal representation, then that person might get away with the crime but for those who do not have legal representation, they might be disadvantaged. I would like to propose that those who are accused of such cases should be incarcerated for life.
The other point is that we need to allow those who investigate on issues related to the death penalty to do a thorough investgation because in some cases some people might be accused yet it will be a case of self defence. The death penalty should be looked into. I personally do not want the death penalty; however, we want a punitive sentence. There are some people who brag about killing saying it does not matter whether I am incarcerated or not. I thank you.
HON. MUSHAYI: I would also want to add my voice to the
contributions on the abolition of the death penalty. I, myself, am an abolitionist. First of all, if we look at the facts that have been presented by Hon. D. Sibanda in terms of saying we have gone for 14 years with no execution; imagine the trauma that the person is going through. We have put them under so much stress. We have made a decision that we are going to execute them but they have been there for 14 years.
We need to put an end to the death penalty. Death penalty does not resolve anything. Suppose I am the relative of the person who has been killed, does it mean that if I kill the person that has killed them it replaces the victim and gives me either my brother or my sister who would have been killed? It does not.
Therefore, we are not bringing a resolution by sentencing these people to death; rather we are creating another problem by taking away a life. I would therefore recommend that if there are cases like these, we give them a moratorium and then we let them have longer sentences in
The reason why we take people to prison is so that we rehabilitate and correct them but if we then sentence a person to death penalty, we are saying there is no room whatsoever for us to correct and rehabilitate. Death penalty is a punishment on its own and takes away life. If we are going to say we are a nation that protects the sanctity of life, we therefore cannot be seen to be again taking a life. We have to come up with measures that allow the persons to be rehabilitated, to also learn because we can only learn if we have cases that we will be using to say look at what is happening to so and so. They have been sentenced to spend so many years in prison instead of saying we sentenced them to a death penalty.
Lastly, if we have 84 lives that are just hanging in limbo and we call ourselves a responsible nation – that is unfair. We have to put a conclusion to what our position is as a nation. If we are going to sentence them to death, we then execute and go ahead but given the fact that we have gone for 14 years with no execution at all, it is a clear indication that as a nation, we really do not believe in death penalty. If we believed in death penalty, we would have taken all measures to make sure that the 84 that are on death row are executed.
I also think that death penalty is primitive, is archaic. We should move with the times as a nation and at least join the league of nations that have abolished death penalty.
HON. SHAVA: Thank you Madam Speaker. My view point on
the death penalty is that one who kills should also be killed in the same punitive action that should be taken against him/her. Some kill deliberately knowing that the law protects them. However if they know that killing would lead to their death also it would reduce cases of murder. I would like to say that killing differs because some might cause the death of others by mistake so this should be looked into. If you kill deliberately using machetes such a person should be given the death penalty. If this happens this will reduce cases of murder. I thank you madam speaker.
+HON. MKANDALA: I would also want to add my voice to this
issue. I think that if someone kills they should be punished for it because if we look at the people who murder others, you realise that there are men who rape elderly women and after that murder. There are also cases where one fakes hiring of a taxi and when they get to the bushes they steal the driver’s money, murders the driver and get away with the car. I think the law should ensure that they are also killed because they deserve it. What kind of a nation are we becoming where there are so many murders? We read about them every day in the papers. There are people who will be walking innocently and they are murdered yet the murderer does not even know the victims. In brief I would say that murderers should be murdered as well. I thank you.
HON. CHIKWINYA: Thank you Madam Speaker, in my view
this motion does not arise and I will state why I think this motion does not arise. This motion seeks to have Parliament debate whether it is right or not right for us to have a death penalty. Yet in 2013 the people of Zimbabwe wrote a Constitution and in that Constitution they made themselves clear as to what they wanted with regards to the sanctity of life. In Section 48 (1) of the Constitution they say every person has the right to life. In Section 48 (2) the people of Zimbabwe said there may be law that may permit death penalty to be imposed on a person convicted of murder committed in aggravating circumstances, but no women shall be subjected to a death penalty.
The very same people of Zimbabwe in May 2013, went to Section
56 of the Constitution and this is what they said “there is equality and non discrimination”. So all persons are equal before the law and have the right to equal protection and the benefit of the law. So what does it mean? If the women are protected in Section 48 (2) so whatever happens to the woman in this Section must happen to the man in terms of Section 56. So, if we are in agreement that Section 48 of the law is saying there must be right to life and we are in agreement that no woman must be subjected to death penalty, therefore if women and men are equal, then there should be no death penalty. It is as simple as that and as Parliament we have no right to air out our emotions. This is in our statutes. The motion is supposed to motivate for the alignment of the Constitution and the laws of Zimbabwe. That is my thinking.
I will move over to the issue where the mover of the motion says about 84 inmates are awaiting death penalty and they have not been executed. At the helm of the hammer which is supposed to consent to the taking away of someone’s life is a person who escaped the death penalty himself. Hon. Paradza, in his submission highlighted that the current President of this country despite political innuendos to say is he or not but in terms of legalistic terms he is the occupier of the number 1 seat in Zimbabwe. He escaped the death penalty. The issue that we have now is that because of his prerogative of mercy, he finds it in his own conscience not to place a hammer and say this person must die because someone also placed a hammer and said this person must not die. So, we have a political leadership in the country across the political divide which is in agreement that people must not be killed. We understand the emotions which are around the issues of mashurugwi and people who murder people for criminal purposes, but we must still respect the sanctity of life. We have got various methods of making sure that we reign in murderers in our community. Murderers have been there since time immemorial. In fact, most of us go to church every Sunday to pray to a man who was actually murdered but he forgave those who had murdered him. So we must be able to preserve the
sanctity of life.
I go further to the issue of eight people in America who were wrongfully accused. Cameron Todd Willingham, in 1992 was convicted of arson murder in Texas. He was believed to have intentionally set a fire that killed three children but in 2004 he was put to death, unfortunately. The Texas Forensic Commission later found out that the evidence was misinterpreted and they concluded that none of the evidence that was used was valid. As it turned out the fire was actually by accident. There is also one young black American David Wayne Spence who was electrocuted by 5000 volts. Young guy, 15 years of age and it turned out that the murder of the young girl which he had been accused of when the judgement after his execution in 1997 was later on reviewed, it turned out that the weapon which was used was overweight for his body and could not have been used by a young boy of 15 years. So, these cases speak to issues of wrongful judgement because the judges who sit in the chambers are also human beings and they can err, depending on the judgement before them. I would motivate that we must not leave it to the judges as they are prone to human error for them to decide between life and death.
In our country, Zimbabwe, the crime of treason carries with it a death sentence. In 2019, 21 of your Hon. Members sitting in this House were charged with treason. It then turns out that treason becomes a tool to whip your political opponents into submission because they fear death. So you are now reducing your political competitors because you have put death as the ultimate prize in front that whoever wants to challenge you will face death. Why are we allowing ourselves to use death as a penultimate weapon to cow down your political opponents? I will move again for the abolishment of the death penalty as it is carried in the treason sentence so that we free authoritative voices and the opposition to the throne which has been there since time immemorial. People have died and been hanged simply for opposing the throne and we do not want that. Madam Speaker, I will move to join the team that has been advocated for, that we must all be advocates for the anti death penalty. I thank you.
*HON. TOGAREPI: Hon. Speaker, I want to add my voice on the death penalty issue. Suppose you meet a person who has been sentenced to death and you are supposed to stay a day with him, you will see that the pain that he feels, he would have been sentenced already to death. The time that he will meet members of his family, you will see that if those people who sentence people to death, they would not be able to return the life back if they discover that they made a mistake because if someone has been sentenced to death that is the end and then later on you realise that you made a mistake, what do you do? There is no reverse.
So what I think is, those who moved this motion seriously thought about it that this nation will end up being a country of people who are always mourning or people who are not free because they will be afraid that they will be sentenced to death. I think that if you look at the convicts like murderers, those people who would have murdered, probably they know the circumstances leading to the murder - the two of them, the one murdered and the murderer or they are people who would have just been accused and will not be able to exonerate themselves on how it happened, then you come in and say we should sentence him to death.
I think the person who should kill all people should be God. I think all those people who have been sentenced to death, especially these 84, you will find that for these four years we could not execute the death penalty because it is not our culture as Zimbabweans to kill each other that we should execute what was sentenced 14 years ago. I think we found that it is not fair. Suppose we remove the death penalty for these 84, I think this penalty should be removed and they are charged with life imprisonment.
I once heard when the President was talking about the death penalty which was sentenced on him. The moment that he talks about it you find that his face changes because he has lived with it from 1963 and you see that it really affects him up to today, which means it is a heavy thing. So I was urging all the Hon. Members that we should unite and tell the world.
I know that in 2013 we were full of emotions that those who kill should be killed, but those who carry out the executions have also committed the crime. He has killed as a job but still he has killed. How do you define killing? I think the death penalty should be viewed as a thing that does not work and which does not end the killing of each other. What we should do is to educate people that killing each other is not a good thing, but those who deserve the death penalty we should come up with other ways.
We should go and sit down with a person who has murdered and find out what has led him to do that and then we will find ways of protecting those who that spirit would have befallen on them. A thing that really touches me is that we kill basing on the evidence that we have been given which might not be true.
*HON. HON. N. NDLOVU: Ko kana zviri correct – [Laughter] -
*HON. TOGAREPI: It is the Chief Whip who is talking like that in Parliament. I was thinking, Madam Speaker, the people who have committed any crimes that deserve the death penalty for now to uphold the death penalty is not good for a country and it does not get rid of killings.
If we go to all the countries you will find that there are people who have been executed, but people are still committing those crimes. It did not deter anyone when the spirit had befallen on them. The death penalty does not stop people from killing each other, so I do not think it is a good thing for us to remain with it. Thank you.
+HON. S. SITHOLE: Thank you Madam Speaker. I will speak in Ndebele so that my relatives can also understand me. I want to speak as a victim. I had twins and in 2008 one of them was killed. He was killed by people who had asked for a lift in his car. They had said that they wanted to go to Mpopoma but as they moved to Mpopoma, two were at the back and one was in the front in the passenger seat. So they told him that they wanted to drop off. They took a rope and strangled him and then the ones at the back pulled him back and one went to the steering wheel. When they were about to approach the cemetery at Number 6 the fuel finished. So they just searched him and got everything from him and they closed the car and went. We looked for him all over and we were only told by police about what happened that he was murdered and he had been strangled with a rope.
Therefore, Hon. Speaker, it is difficult to support the view that a person who murders another person should not be killed, but what I am saying is that it should come with circumstances of the gravity of the case. There are others that murder intentionally. The magistrate cannot judge on whether one should be killed if they have not killed intentionally. If the magistrate says there should be the death penalty they would have looked into it thoroughly that the person would have murdered intentionally.
I am therefore speaking as a victim and I am affected by the issue of the death penalty. As it is right now I have one first born but they were two boys. One was murdered. When I heard some Hon. Members saying that the murderers should not be put on death penalty I wondered.
I say that not all of them should be killed but there are different circumstances that should be looked into and there should be checks and balances. I thank you.
*HON. KARENYI: Thank you Madam Speaker Ma’am. Firstly, I
would like to thank the Minister for bringing this motion to Parliament. As Members of Parliament, this has given us time to consider this issue and I believe that it is high time we look at it. What I want to emphasise on is that you discover that if you take 14 years as a family discussing a certain issue, it shows that the issue is contentious. So if we spent 14 years having not sent anyone on death row as Zimbabwe, it means it is not good to pass a death sentence on anyone. If this was a good thing the people on the death row would have been hanged, the fact that they have not been hanged shows that it is a difficult situation.
Madam Speaker, if you watch ‘Another Chance’ on television you discover that every day of someone who is on death row is a difficult day. Given a chance I think if possible, every member of the National Assembly or as Parliament, we need to push the Government so that these people get their rights as citizens. I was touched when Hon.
Chikwinya spoke about selective application of the law. At times we want this and the next day we want something else. As women, we were spared of the death penalty. My question is - do we want men to be given the death penalty? Some Members of Parliament who are in this Chamber right now are saying men are fewer than women.
Madam Speaker, if we are genuine as women, we need to move a motion advocating for women to also receive the death penalty. We cannot move for a law which protects us as women and not protecting men as well. We need to align these laws with the Constitution of Zimbabwe. I believe that there should be equality and fairness in the justice system. It is true that in our country we fear God, so we must not pass the death penalty.
If we see that someone has committed murder, then that person should be given a life sentence because a life sentence means that the person cannot go back to society and commit a similar crime. There are some people who commit crimes at the age of 80 and this means that the person will die in jail. I am of the opinion that the death penalty should be scrapped. Madam Speaker Ma’am, I would like to repeat the point that we know that there are many people who died, some during the Gukurahundi and others in 2008 having succumbed to political violence. Some of these people who committed these crimes were never arrested and are still alive – [HON. MEMBERS: Inaudible interjections.] My thoughts are that there are some people who are still alive and it is known that such people committed those crimes. Madam Speaker, as I see it, the law is falling short. Yes, it is painful that I lost a relative during Gukurahundi or during any other period but passing a death penalty Madam Speaker Ma’am means that we become mini gods.
Let me go to a different issue which was mentioned by another Hon. Member in this House. There is an issue that in these political parties for example, when party A is in power, party B will suffer - we need to consider that in the near future there might be party B in power. This might lead to laws being applied even in retrospect. If such laws were existing, some political activists might have succumbed to the death penalty, for example the late Morgan Richard Tsvangirai at one time faced treason charges. Another Hon. Member said that the President of the Republic of Zimbabwe at one point also faced a death penalty being accused of treason. My view is that; let us give a deterrent punishment, for example life in jail. It is only God who can take a life.
Supposed Madam Speaker Ma’am, later the law discovers that I was
innocent my children are the ones who will end up suffering.
Madam Speaker, yes we know that sometimes we take issues personally. Let me draw the House back to a certain period, a period where commissions were set up to reconcile people because Government wanted reconciliation between people. If we revenge, the men that we want to be given death sentence are the same men who do not want women to be given death sentence. I would like to support Hon.
Sibanda and I say no to the death penalty.
*HON. MADZIVA: Madam Speaker Ma’am, murder is murder; it
does not matter whether you are a man or a woman, you must be given a death penalty. I would also like to say that in some cases men rape their young children even at the age of 8. That is death, it is like killing that child and you deserve a death penalty if you are such a person. A person who kills a young child deserves a death penalty. We can say all these things because some people may not have experienced murder at first hand. Some people were burnt in their houses. If you find or you discover a person who committed arson and killed someone, what would you do? My point is that the person should face a death penalty. I thank you.
*HON. MATARANYIKA: Thank you Madam Speaker for giving
me this opportunity to add my voice to this debate which was brought to this House by Hon. D. S. Sibanda; it is an issue which touches me. The death penalty is very unfair because if there is misapplication of law there is no remedial action. If someone has been given a death penalty and that person is hanged then that person will die in vain despite being innocent. Death sentence should be scraped because of that particular reason. However, I will give several reasons.
The second point is that various researches that were done regarding the death sentence to ascertain whether a death sentence reduced murderers revealed that there is no evidence that a death penalty can reduce murder cases. For example in Canada, it abolished the death sentence in 1976. So from that particular year up to 2016, it was discovered that murder cases were actually reduced during that period.
This evidence helps us to see that even when a country scraps the death sentence it does not mean that murder cases will decrease. I would like to say that as Zimbabwe, let us learn from this case study which is a good study. My other point is that when we look at all the ways that are used to kill those on death roll, there is no good way used even though a person can be shot, given cyanide or any other way. All those ways are violent and so we are not supposed to support violence.
Furthermore, death sentence violates the right to life which is in the Constitution on Section 48 as mentioned by Hon. Chikwinya, which clearly states that everyone has a right to life. I would have loved if we end there at that particular section which says that everyone has a right to life. Section 86 of the Constitution says that it gives limitations of the rights and freedoms. Section 86 (3) states that no law may limit the rights enshrined in this chapter; it goes on to say that the right to life except to the extent specified in section 48.
Hon. Minister, my plea is that when we go through the Bill, let us remove that particular part and end where it says, the right to life should not be violated. The right to life is divine having been given life. If we decide to apply the death sentence, we are not different from murderers, we are the same. The right to life should not be violated by anyone. I want to ask a question - when someone has been killed after being given the death sentence, who suffers? Is it the person who dies or those who are left behind? So why should we punish those who are left behind? I believe that there are many ways of rehabilitating and removing murderers in society.
I know there are people who have murderers’ thoughts. What we need to do is, we need to remove them from society as a nation and as God-fearing people, we must not revenge. We must not say that such people deserve to die because we will be like murderers. Let us live killings to God. What we can do is to remove those people from society.
Looking at our lives as black people you will discover that there is no point in killing a killer in our African culture because this is an alien practice which was brought by imperialists.
When I think about the issue which concerns our President, who in 1966 having participated in the bombing of a train, after receiving a death sentence his colleagues were killed. However, the President survived because he was underage. I always think that had he been given a death sentence and had he been hanged then, maybe we would not be having such a visionary leader. For us to continue enjoying the ruler-ship and leadership of President Mnangagwa, it is because he survived the death penalty because of being underage.
Madam Speaker Maam, my plea is that this issue should be aligned to the Constitution through the Constitution Amendment Bill. The world consists of plus or minus 195 countries. 106 countries have abandoned the death sentence. This includes countries like Guinea. As Zimbabwe, we must demonstrate that we are learned and we are intelligent by removing the death sentence.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the
debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 19th February, 2020.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House
adjourned at Thirteen Minutes to Six o’clock p.m.