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NATIONAL ASSEMBLY HANSARD 2 FEBRAURY 2023 VOL 49 NO 16
PARLIAMENT OF ZIMBABWE
Thursday, 2nd February, 2023
The National Assembly met at a Quarter-past Two o’clock p.m.
PRAYERS
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENTS BY THE HON. SPEAKER
PETITION RECEIVED FROM ZIMBABWE NATIONAL RESOURCES COUNCIL
THE HON. SPEAKER: I have to inform the House that on Friday, 16th December 2022, Parliament of Zimbabwe received a petition from the Zimbabwe National Resources Council beseeching Parliament to, among other things, exercise its oversight role and hold the ministries of Mines and Mining Development; Environment, Climate Change, Tourism and Hospitality Industry and the Environmental Management Agency accountable and ensure the destruction of Mutare River is stopped.
The petition has since been referred to the Portfolio Committee on Mines and Mining Development.
NON-ADVERSE REPORTS RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE
THE HON. SPEAKER: I have to inform the House that I have received non adverse reports from the Parliamentary Legal Committee on the following Bills and Statutory Instruments:
- The National Security Council Bill H.B. 2A, 2022.
- Statutory Instruments 1, 2, 3, 4, 5, 6, 7, 8, and 9 published
in the Government Gazette during the month of January 2023.
CONSIDERATION STAGE
NATIONAL SECURITY COUNCIL BILL [H. B. 2A, 2022]
Amendment to Clause 3 put and agreed to.
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
THIRD READING
NATIONAL SECURITY COUNCIL BILL [H. B. 2A, 2022]
THE MINISTER OF JUSTICE, LEGALAND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Speaker Sir, I now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
HON. CHIKWINYA: On a point of clarification Mr. Speaker Sir.
THE HON. SPEAKER: Point of clarification on the motion?
HON. CHIKWINYA: No, it is on a ruling made by the Speaker yesterday.
THE HON. SPEAKER: You should have sought that point of clarification yesterday.
HON. CHIKWINYA: We tried Mr. Speaker.
THE HON. SPEAKER: I will not allow it because we do not work in reverse gear in terms of our procedures.
HON. CHIKWINYA: I purely understand Mr. Speaker.
THE HON. SPEAKER: That is the ruling. You should have dispensed that yesterday.
HON. CHIKWINYA: It is just a clarification from your...
THE HON. SPEAKER: Kindly sit down please.
COMMITTEE STAGE
JUDICIAL LAWS AMENDMENT BILL [H. B. 3, 2022]
First Order read: Resumption of Committee Stage: Judicial Laws Amendment Bill [H. B. 3, 2022].
House in Committee.
On Clause 3;
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I propose the amendments standing in my name that we delete Part II of the Bill on page 2 and substitute it with the following and the subsequent clauses will be renumbered accordingly.
I am proposing to make amendments to the Constitutional Court Act and substitution of Section 5 Cap 7 (2.2). Section 5 of Principal Act is repealed and substituted by;
Part II
AMENDMENTS TO CONSTITUTIONAL COURT ACT [CHAPTER 7:22]
2.Substitution of section 5 of Cap 7:22
Section 5 of the principal Act is repealed and substituted by¾
“5 Decisions of court
(1) The decision of the court shall be the decision of the majority of the judges. In other words, I am repealing that section and indicating that the decisions of the Constitutional Court must be the decisions of the majority of the judges.
(2) The court shall not be bound by any of its own judgments, rulings or opinions, nor by the judgments or opinions of its predecessors” that becomes the new Clause 3.
THE TEMPORARY CHAIRPERSON (HON. KHUMALO): Order Hon. Minister, we understand the amendments were circulated to Members – [HON. ZIYAMBI: Yes!] – Why are you repeating them?
HON. ZIYAMBI: Oh, for emphasis, you want me to simply say as it fully appears in the Order Paper. Let me just continue –
The new Clause 4;
- New section inserted in Cap 7:22
The principal Act is amended by the insertion of the following section after section 9¾
“9A Friend of the court
(1) The court may allow a person with expertise in a particular matter which is before the court to appear as a friend of the court.
(2) Leave to appear as a friend of the court may be granted to a person on application orally or in writing.
(3) The court may, on its own motion, request a person with expertise to appear as friend of the court in a matter before it.
Then the new Clause 5; this is the one which is in the Order Paper which is in the Bill now. Section 10 and it includes the amendments that we proposed yesterday. Section 10; sittings and vacation of the principal Act is amended by the insertion of the following subsection: - the existing section becoming subsection (1). Subject to subsection (3), rules may provide for the sittings of the court and of judges of the court, whether sitting in court or in Chambers to be conducted by the use of any electronic or any other means of communication by which all parties to the proceedings at the sitting can hear, be heard and be seen at the same time without being physically present together here-in-after referred to as virtual sittings.
- The parties concerned must consent to their proceedings being conducted by way of a virtual sitting, but in the event that only one of the parties to a proposed virtual sitting does not consent to the virtual sitting, the court shall have discretion to determine whether or not the sitting shall be held virtually. So we have incorporated the amendment that was proposed yesterday.
Hon. Chair, sub clause 4 rules shall make provision for the public to have access to virtual sittings;
- Any party who participated in a virtual sitting for which provision is made in the rules is deemed for all purposes to have been present at the sitting. I thank you.
HON. GONESE: I think those amendments which were read by the Hon. Minister are not on the Order Paper. It is just a question of clarification. I know you had said you would say it only once but we were trying to digest and grasp whilst I thought they were on the Order Paper , then I was going to read them at my leisure but they are not there.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, the first amendment that we have inserted there pertains to the amendment to the Constitutional Court Act where the proposal is that we must indicate in the Act that decisions of the Constitutional Court shall be the decision of the majority of the judges. The second one just indicates that the Constitutional Court is not bound by any of its own judgments or rulings or opinions. It is just that we wanted to put it there for clarity’s sake. So those are the two new ones and the other one is about the friends of the court to say that somebody can make an oral application to become a friend of the court or the Constitutional Court can invite anyone with expertise. So those are the only ones that we have added there.
*HON. CHIDZIVA: Hon. Minister, I would like to seek clarification on virtual sittings whereby there shall be some witnesses who are not supposed to be following the court proceedings but are to be called at a later stage. What are we going to do with such a scenario?
HON. ZIYAMBI: Hon. Chair, we excluded criminal trials from this, we simply put in bail hearings, routine remand.
(v)HON. MOLOKELA-TSIYE: Chapter 7:22 (3) where it says ‘the court may on its own motion request a person to appear’- I think the Hon. Minister should change the word ‘on its own motion’, to ‘on its own volition’ that is the correct English.
HON. BITI: We have no problem with the amendment in (4) because we agreed on that. My only problem is on what the Minister is trying to insert today which was not in the original Bill. Remember, the Bill was just dealing with virtual court hearings. I have no problem with the provision dealing with amicus curiae. What I simply want to say is, I would have preferred the issue to be dealt with in terms of the rules of the Constitutional Court. So, maybe we can add that the rules of court can provide the details. For instance, you speak of an application, does it have to be a normal court application or does it have to be a Chamber application, so the rules must deal with that.
My more substantive point is to do with Section 5 (2), ‘the court shall not be bound by any of its own judgment, rulings or opinions nor by the judgments or opinions of its predecessors. I do not know why you put it because it is an Apex court. So, the court does not need this to be reminded. If you put it, it is almost like you are giving them a licence to just willy-nilly change and reverse their judgments. Law needs to be certain and if you follow our Constitution, it says the law that applies in Zimbabwe is the law as it stood at the Cape in 18 something. So, we follow Roman Dutch Law, Hon. Dexter Nduna will tell you and other lawyers that we are bound by the principle of stare decisis, the principle of precedent - so the law needs to be certain. Therefore, on this provision, you are almost inviting them to be chaotic, change their rules, and just remove it because it does not change the fact that they have powers to reverse judgments on good reason. It is not adding any value but it is adding mischief. My appeal to you is that there is no benefit at all that you are deriving from this thing other than mischief. Let the law remain as it is - dry, old, lackadaisical, indifferent and conservative. My proposal is that just take out (2). If you put it there now, you are not deriving any benefit from it. Mr. Dias you are there, why are you putting it? There is no value. Give Mr. Dias the microphone. Hon. Nduna, you are a law student, tell them. It is a conservative profession and that is why we are still putting wigs and black gowns 44 years after Independence.
HON. ZIYAMBI: I agree to remove sub-clause 2 which speaks about the judgments. We can expunge that from my amendment. On the question by Hon. Molokela to say “on its own motion” that is correct English. I can privately school him so that he can appreciate that it is used frequently like that.
HON. GONESE: Just a point of order on a procedural issue, not on the Bill. It is about how we conduct our proceedings. I have noticed that when people are on virtual - unless you are connected on your own gadget but sometimes we have got these gadgets but the audio is not coming out clearly, I believe it is something that ICT should attend to. When you are in the House – if we all connect, it may mean that there will be a lot of disturbances. My point of order relates to those on virtual so that we can all hear from the speakers because we have the screens. When you are in a hybrid meeting, there are usually speakers which enable you all to hear the person on virtual but here, the way we are operating, you can hardly hear the person unless you connect your own gadget and put on the volume. We in the House should be able to hear those on virtual, otherwise it defeats the whole purpose of having those screens. You can see them on the screen but if you have not connected yourself, you are not able to hear them. I think it is an issue which should be addressed.
Amendments to Clauses 3, 4 and 5 put and agreed to.
Clauses 3, 4 and 5, as amended, put and agreed to.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI) I move the amendment standing in my name that Amendment of Section 16 of Chapter 7:22, Section 16 Appointment of Registrar and Officers of the court of the principal Act is amended by the insertion of the following subsection after subsection (2); (3) the Registrar and other officers of the court shall perform such functions and exercise such powers as may be conferred upon them by this Act and the rules.
Amendment to Clause 6 put and agreed to.
Clause 6, as amended, put and agreed to.
On Clause 7:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI): I move the amendment standing in my name that: New Clause 4 by substitution of section 22 of Chapter 7:22 of the principal Act is repealed and substituted by procedure for invalidation of law,
- The rules may prescribe the procedure for confirmation of any order of constitutional invalidity made by another court that has the effect of invalidating an Act of Parliament or any conduct of the President or Parliament;
- The Attorney General shall be entitled to be heard by the court on the question of whether an Act of Parliament or any conduct of the President or Parliament is in contravention of the Constitution, whether or not the Attorney General was a party to the proceedings in which any order of constitutional invalidity affecting such Act or conduct was made by another court.
HON. BITI: Firstly, to say that the rules now as they stand actually already provide for the procedure of the confirmation, because the procedure for the confirmation Hon. Chair, is provided by Section 175 (4) of the Constitution. Section 175 of the Constitution already says where a court has made an order for Constitutional invalidity, the Constitutional Court must confirm – [THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS: Dzokorora] – I am saying this provision, strictly speaking, is not necessary because the rules as they stand now already provide for a situation where a lower court has declared unconstitutional or invalid a section. This rule however is necessary because the Constitution in Section 175 is badly worded now in respect of a situation where a lower court refuses to invalidate a section. So the rules and the judgement of the Hon. Justice Garwe says even where a lower court has refused to declare a section invalid, the Constitutional Court must consider whether that decision was correct. So do deal with that lacuna, I propose that sub-section (1) should say ‘the rules may prescribe the procedure for the confirmation or non-confirmation of an order.’ Already they are doing that, based on interpretation by the esteemed Hon. Justice Garwe. To deal with that lacuna, please add a non-confirmation. Thank you very much.
HON. ZIYAMBI: Hon. Chair, I want to thank Hon. Biti but with all respect, if people go and make applications for Constitution invalidity and the court dismisses them to then say those judgements must proceed to the Constitutional Court for confirmation or not to be confirmed, we will overburden the Constitutional Court with useless applications. People can just wake up and decide to make a useless application to the High Court to say that I want this section invalidated and then you end up with a lot of referrals to the Constitutional Court. I respectfully submit that where an order of constitutional invalidity has been issued, then that must go to the Constitutional Court but if somebody is aggrieved, they can pursue it on their own to say ‘I am aggrieved by this judgement’ and then they can give reasons and approach the Constitutional Court, I submit.
HON. BITI: Hon. Chair, there is already a judgement by Hon. Justice Garwe. There is already a provision in the Constitutional Court providing for reference where there has been refusal to declare invalid. I am not talking about the things that are academic. So, once you add that you will follow them.
HON. GONESE: The argument or a submission advanced by the Hon. Minister is that the Constitutional Court will get too much work and I believe that, that is not a sound submission. The Hon. Minister has already brought in amendments to bring clarity. I believe that in the same vein, in the context of there being a judgement to that effect, in light of what is already there in the Constitution, there is no harm Hon. Minister in inserting that clause. It is already in conformity with not only the provisions of the Constitution but also a ruling of a Judge of the honourable court. I believe that we lose nothing by having the amendment proposed by Hon. Biti becoming part of the Bill because at the end of the day the amendments which have already preceded this one are in fact intended to bring clarity and that is the same rational and the same reasoning which we are advancing.
HON. BITI: Hon. Chair, Section 175 (3), so you have two situations, the one where a court says a section is invalid, so section 2 (2) of the Emergency Powers Temporal Measures Act can be declared unconstitutional. This is the one that allows the President to make statutory instruments. If that happens, the Constitutional Court has to confirm the invalidity but you have another situation where the High Court refuses to say Section 2 (2) is invalid, in other words, the High Court says it is valid. Now that section is dealt with by section 175 (3) which says, “any person with a sufficient interest may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1)”. So the Constitution is taking into account two situation validity and invalidity. Now a proposed section right now is only envisaging one situation constitutional invalidity but you have to take into account both invalidity and validity. You take that into account by simply saying the rules may prescribe the procedure for the confirmation or non-confirmation of an order, mabva mapedza nyaya, quod erat demonstrandum....
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I propose to expunge from this clause, the procedure for invalidation of law, and only leave the sub clause pertaining to the Attorney General. I thank you. – [HON. BITI: Thank you. God bless you.] –
Amendment to new Clause 7 put and agreed to.
New Clause 7, as amended, put and agreed to.
On new Clause 8:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I am proposing a new Clause 8 pertaining to minor amendments that will be done to the Schedule.
Hon. Chair, I propose amendments to the current Clause 4 which becomes Clause 9. Clause 4 of the Bill is amended on page 2, in line 27, by the deletion of ‘hear and be ‘heard’, and the substitution of ‘hear, be heard, see and be seen’, and in lines 30 and 31, by the deletion of the proviso to sub clause 2, and the substitution of the following new sub clause 3; The parties concerned must consent to the proceedings being conducted by way of a virtual sitting but in the event that any one of the parties to a proposed virtual sitting does not consent to the virtual sitting, the court shall have the discretion to determine whether or not the sitting shall be heard virtually and the subsequent clauses shall also be renumbered accordingly.
Then in line 33, by the insertion of a new sub clause as follows:-
- Rules shall make provisions for the public to have access to virtual sittings, and then we renumber the clauses accordingly. Thank you Hon. Chair.
Amendment to Clause 4, now Clause 9 put and agreed to.
New Clause 9, as amended, put and agreed to.
On Clause 5, now Clause10:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I propose amendments standing in my name; that Clause 5 of the Bill is deleted and substituted by the following new clause and you renumber accordingly;
“5. Amendment of Section 2 of Cap 7:06
Section 2 (“Interpretation”) of the principal Act is amended by the insertion after the definition of “civil case” of the following definition—
“Deputy Judge President” means the Deputy Judge President of the High Court;”. I thank you. Then it becomes a new clause, let us end there.
HON. BITI: We just want to acknowledge the Hon. Minister
listening to us that the original Clause 5, as it stood, was terrible. So we want to thank you for removing the terrible provision.
Amendments to Clause 5 now Clause 10 put and agreed to.
New Clause 10, as amended, put and agreed to.
On Clause 6, now Clause 11:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I am proposing amendments in my name. I want to insert a new clause in the Bill on page 3, in line 4, by the insertion of a new clause there which you will renumber accordingly.
Amendments to Clause 6 now Clause 11 put and agreed to.
Clause 6 now Clause 11, as amended, put and agreed to.
On Clause 7 now Clause 12:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Chairman, I propose amendments in my name. A new Clause before the current Clause 7 so that it becomes the current Clause 7:
INSERTION OF NEW CLAUSE
The Bill is amended on page 3, in line 4 by the insertion of a new Clause 7 as follows—
“7. Insertion of new section to Cap 7:06
The principal Act is amended by the insertion of the following section after section 3—
“ 3 A. Deputy Judge President
(1) The Deputy Judge President of the High Court shall be appointed by the President in accordance with this section.
(2) Whenever it is necessary to appoint a Deputy Judge President, the Judicial Service Commission must—
- advertise the position;
- invite the President and the public to make nominations;
- conduct public interviews of prospective candidates;
- prepare a list of three qualified persons as nominees for the office; and
- submit the list to the President;
whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.
(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2) (e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.
(4) The Deputy Judge President shall assist the Judge President in the exercise of his or her functions, and shall perform other functions as the Judge President may assign to him or her.
(5) The President must cause notice of the appointment of the Deputy Judge President to be published in the Gazette” and the subsequent clauses shall accordingly be renumbered.
Amendment to Clause 7, now 12, put and agreed to.
Clause 7, now 12, as amended, put and agreed to.
On Clause 7, now 13:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Mr. Chairman, I propose amendments in my name:
DELETION AND SUBSTITUTION OF CLAUSE 7
Clause 7 of the Bill is deleted and substituted by the following—
“ 7. Amendment of section 2 of Cap 7:06
Section 47 (“Sittings of the High Court”) of the principal Act is amended by the repeal of subsection (3) and the substitution of the following sub-sections—
“(3) Rules of court for virtual sittings shall apply to both civil and criminal proceedings.
(4) Rules shall make provision for the public to have access to virtual sittings.”.
HON. GONESE: For the sake of clarity Mr. Chairman, during the course of the debate yesterday, the Hon. Minister made it abundantly clear that trials are excluded. By this I understand him to mean both civil and criminal trials in that virtual sittings will be confined firstly to applications and other processes which are not trials like bails, remands, appeals and so on. I believe that for the sake of clarity, it would be a good practice to specify that and my proposal would be that rules of court for virtual sittings shall apply to both civil and criminal proceedings with the exception of civil and criminal trials. I think that would make it clear so that there is no abuse of processes. It will be clear that the proceedings which are referred to will be exclusive of trials – criminal trials and civil trials. We need witnesses and so forth. I think if that is done, that will do justice to the intention of the legislature to exclude those.
Amendments to Clause 7, now Clause 13, put and agreed to.
Clause 7, now Clause 13, as amended, put and agreed to.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Mr. Chairman, I want to recommit the previous clause. In the current, I said the procedure is like what it is currently but I notice that in the Bill they speak of advertising. The Judge President’s position is not advertised. So I want to recommit so that I make it clear. I want to expunge what is there and substitute to indicate that the same procedure like what is done to appoint the Judge President will be used. I seek your indulgence to recommit the previous clause. It is a new Clause 7 which is Clause 13. In the Order Paper, it says a new 7 but after renumbering it becomes Clause 13. I want to recommit that one with your indulgence.
New Clause 7, now Clause 13 recommitted:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Mr. Chairman, the new sub clause is about the principal Act.
The principal Act is amended by the insertion of the following section after section 3—
“ 3 A. Deputy Judge President
I will amend it to say, there shall be a Deputy Judge President who will be appointed in the same way that the Judge President is appointed in terms of Section 180 (2) of the Constitution. I propose that on the new sub-clause 7 on my notice of amendment that:
“7. Insertion of new section to Cap 7:06
The principal Act is amended by the insertion of the following section after section 3—
“ 3A. Deputy Judge President
- The Deputy Judge President of the High Court shall be appointed by the President in accordance with this section (in the same way that the Judge President is appointed in terms of Section 180 (2) of the Constitution).
- Whenever it is necessary to appoint a Deputy Judge President, the Judicial Service Commission must—
(a) advertise the position;
- invite the President and the public to make nominations;
- conduct public interviews of prospective candidates;
- prepare a list of three qualified persons as nominees for the office; and
- submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.
- If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2) (e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.
- The Deputy Judge President shall assist the Judge President in the exercise of his or her functions, and shall perform other functions as the Judge President may assign to him or her.
- The President must cause notice of the appointment of the Deputy Judge President to be published in the Gazette.”
and the subsequent clauses shall accordingly be renumbered.
Amendment to new Clause 7, now Clause 12 put and agreed to.
New Clause 7, now Clause 12 as amended, put and agreed to.
On Clause 7, now Clause 13:
HON. GONESE: I am now going to remake my submission. The submission which I am making is that in the context of the deliberations that we had yesterday and even today, it was made very clear that the intention is to have virtual sittings apply to proceedings other than trials. Here we are talking of applications, remands, appeals and other processes. I believe that for the sake of clarity, it will be prudent for us to amend the current formulation in the new Clause 13 so that we make it explicit that criminal and civil trials are actually excluded. I therefore propose the following proviso to be put after the clause as it stands so that it will read as follows;
“Rules of Court for virtual sittings shall apply to both civil and criminal proceedings with the exception of criminal and civil trials.” I think that proviso will then make it abundantly clear that the intention of the legislature is to have virtual sittings only apply to those proceedings which are not trials. – [HON. NDUNA: Which are not?] – trials, civil and criminal trials because in civil and criminal trials you actually have the leading of evidence, cross examination of witnesses and so on. Issues of administration are very important when a judicial officer is assessing the credibility of the evidence which would have been given by a witness.
HON. NDUNA: I think earlier when we debated the same clause, there was concession that only criminal trials be set aside on virtual. I am inclined to think different that even if it is a civil trial, as long it has witnesses, we might defile the process if it is held anywhere else outside the precincts of the court because we are not in control of the witnesses. I am actually in sync or agreement with Hon. Gonese that both these trials, it becomes very ambiguous for the court to adjudicate because they are not in control. We might have a situation where the courts are compromised by witnesses who are errant or outside the precincts of the court, which the court is not in control of. The court is the interpreter of statutes; so in the absence of those people credibly before the courts, the court is not in control of its own process. So I am bound to agree with my learned friend that we need to actually leave the court to make sure that they are not impeded in the processes by allowing the court process to go through with them in control.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, my understanding is that the court rules as they are currently couched allow this. So it is not something that is not there. It is being practiced currently and I think it is only progressively, we cannot avoid technology, so we must embrace it. It is happening everywhere in the world. Our rules permit it, even how witnesses are handled. So my prayer is that let us pass it because we cannot run away from technology. The overriding factor is, both parties will agree and where consent has not been given rationally, the court will make a decision but all the mechanisms in the rules are there to ensure that everything will be done fairly.
HON. GONESE: Firstly, I have heard the Hon. Minister but I want to point out that the Hon. Minister is contradicting himself. It was very clear in our debate, deliberations and engagements that the Hon. Minister himself with his own mouth and words indicated that it was not intended to have these proceedings apply to trials and I want also to highlight the dangers in question. During the Second Reading and also in view of the submissions made by the profession yesterday when I made my remarks, I paraphrased them by saying that the Law Society which represents the legal profession in the country made submissions to the Portfolio Committee and those submissions were well articulated by our Hon. Chair.
The point was made very clear that there are so many dangers related to the challenges which we are facing. Yes, in other jurisdictions they have been able to have provisions which allow some of the dangers I am going to explain to be eliminated. In our situation, notwithstanding the issue of consent, at the present moment we have remand proceedings being conducted in Court 6 and invariably, some of those cases, the accused persons are not given a choice. A decision has been made that the prisons do not have transport; they are not able to take them to court. My fear firstly is that some of these provisions may be abused but more importantly, you will find that what it entails is that firstly you have got to establish a link with applications but with a trial if you are going to have a legal practitioner at a different place from the accused person and that legal practitioner is representing the accused person, there is no link and there is no provision to ensure that confidential communication is held between the legal practitioner and the client.
Even in civil trials, if you are going to have trials proceeding on virtual basis, you can then have a scenario where witnesses are at a different place or even litigants are at a different place from the legal practitioners representing them and that presents insurmountable dangers. I believe that because these are provisions in the rules of court as at a time when as a country we are technologically advanced to the extent that some of the dangers which I am explaining are eliminated, then those rules of court can be changed. For now, I believe it is fair, just and proper to limit the virtual proceedings to the other proceedings which I have already mentioned and for the sake of clarity, I will repeat. You can have your applications, appeals which do not entail the leading of evidence because by their very nature they are based on the papers before the court. The judicial officer will just be basically listening to submissions being made by the legal practitioners.
When it comes to peculiar trials, you are going to have situations relating to unrepresented accused persons even where the accused persons maybe represented, the fact still remains that you still need to maintain that confidential information and I believe that we are not yet at that stage. In the Second Reading, we were very clear that these proceedings should be more of an exception rather than the rule. We do not want to have a situation where our trials are reduced to Chamber processes. The last point I want to make is that when you are dealing with these situations of criminal and civil trials, it is very critical and very important to also have access to those courts. When a trial of public interest is being conducted, we do not want to have all those difficulties in providing the virtual link for members of the public. As long as it is physical, you can then have the situation where interested parties are able to have access to those proceedings where they are able to follow and these are principles which are enshrined in our Constitution. Once we are talking of a public trial, what it entails is that people have access to ensure that justice is not only done but is also seen to be done.
It is also looking at issues of demeanor which I alluded to earlier, when you are appearing in person before a judicial officer, the judicial falls in a better position to access your body language, the way you are answering questions and so on and that will not be the same as in virtual proceedings. So, these are some of the reasons why I believe that the Hon. Minister should really concede and accept that let us have virtual proceedings confined to all the other processes which are not criminal and civil trials.
(v)HON. MOLOKELA-TSIYE: Thank you Hon. Speaker. I just want to speak in support of an exception to say that on trials, we cannot trust the system especially from a technology point of view because the criminals have the ability to pay a lot of money to IT experts to sabotage the trial proceedings. An interested party can buy someone who is an ICT expert and they can disrupt easily a virtual sitting. So, let us not trust that everyone will attend trials in good faith. So, the Minister, whilst he has a good intention, he has not taken into serious consideration, the ability of hackers to hack any court system in this country. I want to emphasize that there is need that when it comes to trials they be excluded from virtual sittings and that as much as possible there be physical sittings. I thank you.
(v)HON. PHULU: I also wanted to suggest perhaps that one of the things that the Hon. Minister ought to consider is that in a criminal trial an accused person has s right to a trial in a public place. So, if a trial is public, how are they going to adapt the system to ensure that those proceedings that are held on virtual are accessible to members of the public? So, I think that is one of the hitches that they might have to consider. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. Yesterday, we did a lot of things that were not correct. So if I said something that was not correct, we are doing the correct thing today.
Hon. Chair, in court, the current scenario decorum requires that where a legal practitioner intends to confer privately with a client during a court hearing, he or she will advise the court and make an application for an adjournment. So you do not converse with your client in court. So, whether virtual or you are sitting in court, the processes will be the same, you will still make an application so that you converse. Hon. Gonese’s argument does not apply and he went on to argue that we want to ensure that everyone is seen, heard and we accommodated that. Whatever is needed, we have accommodated and my plea is, let us not be shy to accept technology because what is happening now is, we are just used to our comfort zone and we do not want to come out of that comfort zone and use modern technology. We tried it during COVID; we have not had any difficulties when we did the remands using the virtual platform. I believe we can still continue to explore and do even trials on a virtual trial. So I propose that the clause stays as it is.
I thank you.
Amendments to Clauses 8 and 9 put and agreed to.
Clauses 8 and 9, as amended, put and agreed to.
On Clause 10:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI): The other amendments on virtual sittings apply also here as they fully appear on the notice of my amendments.
Amendments to Clause 10 put and agreed to.
Clause 10, as amended, put and agreed to.
On Clause 11:
HON. BITI: I have a small problem which needs clarification. The Labour Court is now executing and has its own Messenger of Court. I am not seeing the provision that now makes them an executing court - because I remember the provision that says you register judgment of the Labour Court with the appropriate jurisdiction. I want clarification of the provision that now allows them to be an executive court.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): This amendment is amending the Labour Act so that it removes the need to register and we then insert this. So, at a date when I fix tax effect and then the Messenger of Court will be executed without registering.
HON. BITI: The Labour Court is not a self executing court at the present moment as we speak. If you want to execute Labour Court judgment you have to register with the court of appropriate jurisdiction, normally the High Court because a person will have been given arrear back pay and so forth. We cannot give the power and amend the law to give the Minister the power to appoint the Messenger of Court for the Labour Court when we have not amended the Labour Act so that the Labour Court becomes a self executing court.
What the Minister is saying that we amend the Labour Act when we come to the labour amendment, I suggest that you suspend this provision and just take it and insert it in the Labour Amendment which is already part of the Bill which we are going to discuss either tomorrow or next week. That would be my proposal because you cannot put the cart before the horse; you put the horse before the cart. I can see the officer shaking her head but you cannot change the law my sister. The Labour Court is not self executing, so you cannot have a Messenger making self executing, then it has chikonzi, you cannot put a chikonzi when the court does not have powers rekutema, give it the powers and then put a Messenger. You repeal the provision of the Labour Act that says judgements of the Labour Court need to be registered. Then you say the Clerk of the Court of the Labour Court has got powers of issuing execution, which is what happens in the High Court and the Magistrate Court. The Clerk of Court has got the power and it is issued under the Chief Magistrate or the Chief Justice, and once you do that then you can appoint a messenger. At the present moment, the Labour Court does not have that power. So workers register judgements in the High Court or in the Magistrate Court.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I propose amendments in my name to expunge the old clause, now Clause 16.
Amendments to Clause 16 put and agreed to.
Clause 16, as amended, put and agreed to.
Clause 12, now Clause 17 and Clause 13 now Clause 18 put and agreed to.
On Clause 14 now Clause 19:
HON. BITI: In the Magistrate Court, you have got special victims court for children, I am not sure that those should be on virtual, I seek clarification. You have the provision that is applying to everyone, I think let us make an exception for special victims’ courts.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): They are already heard in camera.
Clause 14, now Clause 19 put and agreed.
Clause 15, now Clause 20 put and agreed to.
On Clause 16, now Clause 21:
HON. BITI: I propose that we leave the law as it currently stands. Giving review powers for two years, let us leave it as it currently stands. You can resolve your problem by just increasing the number of Judges and making them work hard and paying them better. We are aware of the shenanigans that are taking place there on a day to day basis.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam Speaker, I propose that Clause 16, now Clause 21 and Clause 17, now Clause 22 be expunged. Clauses 16 and 17 – [HON. BITI: Thank you!] – Yatobva, yatobva.
Hon. Chair, I need recommittal of the current Clause 16, if we go to the Explanatory Memorandum. Hon. Chair, this clause is amending Section 57 of the Magistrates Act. Listen very carefully Hon. Biti, I will say this only once. Presently, prison sentences of 12 months or more imposed by magistrates are automatically reviewable by a High Court judge to check whether they are in accordance with real and substantial justice.
Given the case load of High Court judges which is very burdensome, we have given the magistrates review power. So, once we give magistrates for those who are 12 months, we need to automatically up the others; that is exactly what we are doing. Otherwise we would have given review power what type of sentences. So this is exactly what this clause is doing to say senior magistrate … - [HON. GONESE: So are you no longer expunging it?] – No, I am no longer expunging it. You understand it? – [HON. BITI: I understand but am still objecting.] – Why are you objecting?
HON. GONESE: With due respect Mr. Chairman, with due respect to the Hon. Minister, the explanation given is that they want to lessen the workload of the judges. When we look at the provisions of Section 171 of our Constitution, the High Court has inherent jurisdiction. Then the second part, the High Court has got review powers and magistrates do not have review powers. What they have is scrutiny, they have power to scrutinize judgments or 12 months or less and once they scrutinize, if the regional magistrate or the senior magistrate is of the view that the junior magistrate has erred then the matter is sent on review – I just wanted to correct the Hon. Minister, that is the procedure.
When you are referring to review powers, they are in the Constitution and when we look at the provisions of the Constitution, they do not refer to the Magistrates Court having any review powers. So that point has got to be clarified first before we can then debate as to the merits or demerits of the clause. I believe I am correct; look at the Constitution, Section 171; the first part of that section talks of the inherent jurisdiction of the High Court. The second Part B refers to the review powers of the High Court.
When we look at the powers of subordinate courts, that is, the Magistrates Court, the Constitution provides that an Act of Parliament…
HON. ZIYAMBI: Hon. Chair, the amendment that we are proposing is to Section 57 (1) of the Magistrates Court Act and here it says ‘review’. ‘When any court sentences any person (a) to be imprisoned to a period exceeding 12 months or to pay a fine exceeding level six, the Clerk of Court shall forward to the Registrar not later than one week next after the determination of the case/record of the proceedings in the case together with remarks, if any, as the magistrate may desire to append.’
So this is automatic review to the High Court, all we are simply saying is to change from 12 months and if it is automatic, to two… – [HON. GONESE: Inaudible interjection.] – Hold on, hold on. We are saying we are giving the magistrate review power. It is not discounted in the Constitution. The magistrates will do review of those that are under – [AN HON. MEMBER: Inaudible interjection.] – We have already done that in this amendment. We did that. I thought I read something like that. Let me check.
*HON. BITI: Let us appoint many judges tosiya zvakadaro. Mai vari kungosheka avo.
HON. ZIYAMBI: Mr. Chairman, I will expunge the current Clause 16, now Clause 21.
Clause 16 now Clause 21 expunged
On Clause 17, now Clause 22:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Chairman, I move that we expunge the current Clause 17.
Clause 17 expunged
Clause 18, now Clause 22 to Clause 20, now Clause 25 put and agreed to.
On the Schedule (Section 6):
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I propose the following amendments to be inserted in the Schedule at the end of the Bill:
schedule (section 6)
MINOR AMENDMENTS TO CONSTITUTIONAL COURT ACT [CHAPTER 7:22] (NO. 5 OF 2022)
Provision Extent of Amendment
Section 16 (1) By the deletion of “Commission whose”.
and the substitution of “Commission and whose"
Section 19 (3) By the deletion of “in rules of Court” and substitution of “the rules”.
Section 22 (4), By the deletion of “The court” and the and
24 (1) and (2) substitution with “The Court”.
Section 25 By the deletion of “his duties” and the
Substitution of “his or her duties”.
Section 26 (1) (p) By the deletion of “for purpose of delay” and the substitution of “for the purpose of delay”.
|
Sections 27 |
By the deletion of “may issue practice directives” and the substitution of “may, after consultation with the committee referred to in section 26 (1), issue practice directions” |
Amendment to Schedule put and agreed to.
Schedule, as amended, put and agreed to.
House resumed.
Bill reported with amendments.
Bill referred to the Parliamentary Legal Committee.
MOTION
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Order of the Day, Number 2 be stood over until Order of the Day, Number 3 is disposed of.
Motion put and agreed to.
SECOND READING
ELECTORAL AMENDMENT BILL [H.B. 11, 2022]
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Allow me to present my Second Reading Speech for the Electoral Laws Amendment Bill. The Bill seeks to amend the Electoral Act Chapter 2.13. The Bill seeks to align our Electoral Act with international norms and standards, and the Constitution of Zimbabwe so as to achieve free and fair elections – [Laughter by Hon. Gonese] – Madam Speaker, you must reprimand Gonese for laughing. It is unparliamentarian. The Bill shall amend the definition section of the Electoral Act to include the following:
It is proposed that the definition section of the Electoral Act be amended so that a driver’s licence is removed as one of the documents to be used as proof of identity for electoral purposes as some do not reflect citizenry on the face of it. In terms of the Constitution of Zimbabwe, one has to be a citizen in order to qualify as a voter. Accordingly, only a valid passport or national identity will be required as proof.
The Bill also seeks to align Sections 49 and 126 with Section 107 of the same Act so that they include the withdrawal of parliamentary and local authority candidature within 21 days before elections. While the law is clear on the timeframe regarding withdrawal of candidature for a presidential election, it is however silent with regards to parliamentary and local authority elections.
Section 107 (1) of the Electoral Act provides that a presidential candidate can withdraw his/her candidature 21 days before polling in order to afford sufficient time for the election management body to make changes to the design of the ballot and to advise the electorate of any changes to the candidature of that election. Thus, the Bill seeks to apply the same law with the parliamentary and local authority elections.
The Bill also seeks to expand the role of the Zimbabwe Electoral Commission to include promotional research into electoral matters, development of expertise and use of technology. This will enable the Zimbabwe Electoral Commission to play a coordination role between Government, political parties and civic society organisations in regards to elections as well as ensuring gender mainstreaming in electoral processes.
The Bill also seeks to amend Section 160 (b) of the Electoral Act to allow the establishment of the Multi-party Liaison Committee throughout the electoral circle. Section 160 (b) of the Electoral Act provides for the establishment of the Multi-Party Liaison Committees at national, constituency and local authority level while a National Multi-Party Liaison Committee can be set up to six months prior to the general election. This period is considered too close to the general election and an insufficient period to deal with any matters that may have arisen during the pre-election period. It is recommended that Section 160 B be amended so as to allow the multi-party liaison committees to sit throughout the electoral cycle for purposes of resolving any disputes that may arise.
The Bill seeks to further amend Section 160 B to allow for the establishment of provincial and district multi-party liaison committees so that election disputes may be resolved from the grassroots.
The Bill seeks to align the electoral legal framework with the Constitution of Zimbabwe (2013) which provides for 30% women representation in local authorities. This is also in line with SADC Protocol on Gender Development of 2008. The current Electoral Act has not made provisions on how the women’s quota should be filled for local authorities. To comply with the Constitution and the SADC Protocol, it is proposed to review the political and social environment and develop strong administrative mechanisms to encourage and support the adoption of women as candidates with a view to achieving gender parity in positions of political leadership.
The Electoral Act seeks to provide for quotas for women candidates nominees and the Electoral Code of Conduct must impose clear responsibilities and obligation on political parties conducive to promoting gender equality in politics.
The Bill further seeks to encompass the additional 10% youth quota. This will allow the youth to be fully represented in Parliament. Madam Speaker, the proposed law will also provide for comprehensive training for its officials on disability conflict resolution and inclusion to ensure greater consistent in the application of electoral procedures through strengthening and lengthening the duration of the training for polling officers is recommended, thus it is proposed that all seconded personnel to the Commission should be trained on disability, conflict resolution and gender inclusion.
Madam Speaker Maam, I urge Hon. Members to support and pass the Bill. I move that the Bill be now read a second time.
HON. MATARANYIKA:
1.0. INTRODUCTION
1.1. The Electoral Amendment Bill [H.B. 11, 2022] was gazetted on 18th November 2022, with a view to address stakeholder requirements, as well as to align the Electoral Act to the Constitution.
1.2. Constitution Amendment (No 2) of 2021 extended the provision for proportional representation of women members of the National Assembly by another ten years, and made provision for the addition of a proportional representation of youths in the National Assembly.
1.3. This Bill, therefore, seeks to align the Electoral Act to the Constitution as well as to include other matters relating to elections in the Act.
2.0. METHODOLOGY
2.1. To gather views from the public in line with section 141 of the Constitution, the Committee on Justice, Legal and Parliamentary Affairs conducted virtual public hearings on National FM and Star FM radio stations on the 30th of January 2023.
2.2. The Committee further conducted a Zoom Public Hearing on the 31st of January 2023.
2.3. This report, therefore, summarises the input received from the people of Zimbabwe, local and abroad concerning the Electoral Amendment Bill [H.B. 11, 2022].
3.0. OVERVIEW OF THE HEARINGS
3.1. The Committee managed to reach out to a large number of people with National FM and Star FM radio stations having frequencies nationwide and Star FM had an average of approximately 2.1 million listeners tuned on.
3.2. The Zoom platform was accessible and open for everyone. Approximately 860 participants connected.
3.3. Some participants managed to connect and contribute from as far as Canada, Australia, New Zealand and South Africa.
3.4. However, some members of the public expressed their concerns over how the public hearings were conducted by use of radio stations and Zoom platform only, arguing that it excluded some people from participation due to the ongoing power cuts, unaffordability of data and connectivity challenges.
4.0. SUBMISSIONS ON THE PROPOSED AMENDMENTS
4.1. Clause 1 (Short title of the Bill): This clause sets out the short title of the Bill and there were no objections raised concerning the short title of the Bill.
4.2. Clause 2: This clause amends the definition in section 4 of the Electoral Act by inserting the definition of a “disqualifying offence” in relation to the disqualification of a candidate for election to the National Assembly or a local council.
4.3. Some participants submitted that offences of a political nature should not be classified under disqualification offences. Some members of the public were of the view that sexual offences should also be classified as disqualifying offences under the Bill.
4.4. The clause also repeals the definition of “proof of identity” by removing the driver’s licence as one of the documents to be used as proof of identity for electoral purposes.
4.5. In terms of the Constitution of Zimbabwe, one has to be a citizen to qualify as a voter, hence according to the Bill, only a valid passport or national identity document will be required as proof of identity. These two documents reflect citizenship.
4.6. Some members of the public were of the view that driver’s licence should be retained as a form of proof of identity because the process of getting national identity documents is cumbersome. They argued that drivers licences have a national identity number which shows citizenry.
4.7. Some participants further highlighted that drivers licences must be modified so that they can show citizenship and remain used as proof of identity for purposes of electoral processes.
4.8. Some participants even proposed that the process of issuance of national identity documents must be simplified and that there should be synchronisation of identification documents on issuance to allow the use of any form of identity document.
4.9 Clauses 3: This clause amends the definition of party list seat in section 45B of the Act so that it is in line with Constitution by including the women’s quota and the youths’ quota.
- Participants applauded this clause as it indicates the need to align the current Electoral Act with the Constitution.
Clause 4: This clause provides for the continued election of 60 women to the National Assembly under a party list, as required by section 124 of the Constitution. It also provides for the youth quota in the National Assembly and provincial councils. It further provides for the election of women in the provincial councils and local authorities.
- Members of the public expressed satisfaction with this clause which seeks to align the Bill to the Constitution. However, some were of the view that the Bill should specify the selection criteria for the youths taking into consideration gender as well as persons with disabilities.
- Some participants were proposing that a 25% quota should be reserved for the youths in all leadership positions since the youths make up the majority of the Zimbabwean population.
- Some members of the public were of the view that the women's quota should be removed and allow fair competition in line with equal rights and gender equality. While most female participants were of the view that the law should provide for 50% women representation, some were of the view that women’s proportional representation should be reduced to between 1% and 5% because the current women’s quota is not adding any value to the economy.
- Others suggested that proportional representation Members of Parliament should serve for only one term and leave others room for rotation.
- Some participants proposed the introduction of a quota for war veterans in councils and the National Assembly.
Clause 5: This clause provides for disqualifications for nominations as a party list candidate as a youth member of the National Assembly, if also nominated as a candidate for election as a constituency member of the National Assembly, or as a member of a provincial council, or as a councillor and for a party-list candidate for election as a member of a local authority, if also nominated as a party-list candidate for election as a Senator or as a candidate for election as a constituency or youth member of the National Assembly, or as a member of a provincial council. No comments were received from members of the public.
Clause 6: This clause amends the process of nomination of party-list candidates by political parties. No comments were received from members of the public.
Clauses 7 and 8: These clauses stipulate that withdrawal of candidature for election must be done not less than 21 days before elections. No comments were received from members of the public.
Clause 9: This clause disqualifies a person from contesting as a councillor if he or she has been convicted of a disqualifying offence for which he or she has not received a pardon. No comments were received from members of the public.
Clause 10: This clause provides that if a nominated candidate withdraws, they should write to the Chief Elections Officer notifying him/her of their withdrawal. No comments were received from members of the public.
Clause 11: This clause provides for the principles applicable to the election of youth members of the National Assembly and local councils. No comments were received from members of the public.
5.0. GENERAL SUBMISSIONS
5.1. Some members of the public expressed their concerns about the way and means Parliament used in conducting these hearings. Parliament was urged to improve in raising awareness of its Bills as well as educating the public on the Bills before soliciting views from the public.
5.2. Parliament was also urged to improve its public engagement, especially on Bills of public interest by reaching out to the rural and marginalised communities physically. Members of Parliament were also urged to take up the central role of sensitising the public in their respective constituencies on all Bills before undertaking public hearings. This will ensure that the public makes meaningful contributions to the law-making process.
5.3. Participants also raised various other issues related to elections and were of the view that other electoral reforms should be included in the Bill. Some members of the public expressed their concerns over the independence of the Zimbabwe Electoral Commission and were of the view that the Commission should only report to Parliament to guarantee its independence.
5.4. Some members of the public were of the view that ZEC Commissioners should be apolitical while others were of the view that ZEC Commissioners should be provided by political parties. Some participants further urged ZEC to enforce peaceful campaigning by candidates and that all candidates involved in political violence should be disqualified from contesting regardless of which political party they belong to.
5.5. Members of different civic society organisations further submitted that ZEC should allow more stakeholders to conduct civic voter education and that the Bill should make it mandatory for ZEC to avail the electronic voters roll.
5.6. Organisations representing persons with disabilities submitted that the Bill does not adequately address their concerns. They were of the view that the Bill should introduce braille ballot paper for the visually impaired and ensure that polling stations be disability friendly.
5.7. They further submitted that persons with disabilities should be accommodated in the youth quota, provincial councils, local authorities and women’s quota in both Houses. It was their view that the Bill must make provision for postal voting for persons with disabilities and accommodate them to contest in all positions.
5.8. It was also submitted that the law should provide for proportional representation for persons with disability in the National Assembly.
5.9. Participants from the diaspora community registered their concerns over the exclusion of diaspora vote from the Bill. They submitted that the Bill should provide for diaspora vote and that ZEC must come up with necessary regulations and mechanisms that allow diaspora vote.
5.10. Some participants were of the view that the Bill should provide for party and candidate regulations as well as political party financing regulations. It was submitted that every elected position of power should have a maximum of two term limits and the Bill should give powers of recall to the electorate.
5.11. Members of the public suggested that traditional leaders should be non-partisan and all Members of Parliament to reside in the constituencies in which they were voted to represent.
5.12. Some participants were of the view that the Bill should introduce broadcast rallies for all Presidential candidates, and prescribe minimum qualifications for councillors, MPs and the President, i.e. O’ level for councillors, A’ level for MPs and Degree for Presidential candidates.
- Some participants further submitted that MPs and councillors should retire at the age of 65. It was their view that this will accommodate the youth to take up leadership positions. They proposed that the Bill should also stipulate the maximum age limit for election candidates.
- Some members of the public were of the view that the drafters of the Bill should consider the proposed ZESN and other Civic Society Organisations Draft Electoral Amendment Bill and incorporate its proposed amendments.
- It was further submitted that election observers should be allowed to observe elections throughout the electoral cycle from voter registration to the announcement of election results.
- Some participants were of the view that nomination fees are too high and unfriendly for persons with disabilities.
- Media practitioners also submitted that there are journalists who continue not to vote every time there are elections due to their nature of work. It was their submission that most of the time they will be covering elections in constituencies they are not registered in and as such, they will not be able to vote.
- It was their view that section 73 of the Electoral Act must be amended to allow postal voting for journalists.
- Organisations representing young people also submitted that Multiparty Liaison Committees must be decentralized and composed of all stakeholders including youths. It was their view that Multi-Party Liaison Committees should become permanent structures and not wait for the proclamation of elections to respond to political violence which otherwise is perennial throughout the electoral cycle.
6.0. COMMITTEE OBSERVATIONS
The Committee made the following observations:
6.1. The nature of the Bill generated a lot of interest among the general public which saw a high participation on the Zoom link. Therefore, more time should have been allocated for the public consultations.
6.2. Some members expressed dissatisfaction with virtual public hearings amid the current power challenges nationwide, data affordability and connectivity challenges.
6.3. The zoom platform was hacked and disrupted the public hearing.
6.4. The Bill falls short of addressing the much-needed electoral reforms.
- Some issues raised are beyond the Electoral Act and require amendments to the Constitution.
- ZESN submitted a Draft Electoral Bill to Parliament.
7.0. COMMITTEE RECOMMENDATIONS
The Committee, therefore, recommends the following:
7.1. There is need for Parliament to consider undertaking both virtual and physical public hearings on Bills of public interest. In as much as virtual hearings have their challenges, however, a wide coverage can also be reached.
7.2. Parliament must improve the security of meetings on the zoom platform.
7.3. Features on a driver’s licence must be improved so that a driver’s license becomes an acceptable and official identification document.
7.4. The ZESN Draft Electoral Bill referred to by some members of the public may have to be looked together with the Bill considering that Parliament was involved in the process of drafting the Bill.
7.5. Wide stakeholder engagement should take place before all Bills are crafted to ensure that all issues are incorporated.
8.0. CONCLUSION
The Committee noted that although there were concerns over the virtual public hearings, pertinent issues were raised by the participants who made submissions. Individual members of the public as well as civic society organisations managed to make meaningful submissions on radio, on zoom, via emails and messages to Parliament. The Committee, therefore, believes that passing this Bill after strong consideration of the views of the people and their recommendations will help to shape our electoral laws and processes, with the basic concepts of transparency and inclusivity that lie at the heart of the country’s democracy and sovereignty.
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: Friday, 3rd February, 2023.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, the House adjourned at a Quarter past Five o’clock p.m.