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NATIONAL ASSEMBLY HANSARD 25 JUNE 2020 46 50
PARLIAMENT OF ZIMBABWE
Thursday, 25thJune, 2020
The National Assembly met at a Quarterpast Two o’clock p.m.
(THE HON. SPEAKER in the Chair)
HON. MABOYI: Mr. Speaker Sir, I rise on a point of privilege to sadly inform the House that on the 20th of June, 2020, Beitbridge West Constituency lost three members of the same family comprising of the father, mother and their daughter. The family is suspected to have succumbed to suffocation from carbon monoxide from a charcoal brazier
(mbaura). The family was discovered on Sunday late afternoon on the 21st of June, 2020...
THE HON. SPEAKER: Order Hon. Member. I reiterate once more.
Points of privilege must relate to the rights of Members. That incident is unfortunate but unfortunately, it does not relate to the rights of Members. Please be guided accordingly for the future.
*HON. MUSIYIWA: My point of privilege is in line with this pandemic of COVID-19. We want to thank the President for what he has done in conjunction with the Ministry of Education in trying to prevent the spread of the disease. We also want to show our appreciation for certain things that have happened. The City of Harare is now clean…
THE HON. SPEAKER: What has that to do with your rights?
HON. ZHEMU: My point of privilege is of national interest which arises from a question raised by Hon. Chikomba yesterday concerning payment of seed cotton that is being delivered by farmers –
[HON. SIKHALA: Inaudible interjections.] -
*THE HON. SPEAKER: Order, order Hon. Sikhala, Sisonke.
Kayisibo bantu bami, ngabantu bethu – [Laughter.] -
HON. MUSHORIWA: My point of privilege is as follows; on 30th July 2018 – the people of Dzivaresekwa Constituency elected me as Edwin Mushoriwa (Member of Parliament for Dzivaresekwa) under the ticket of MDC Alliance party. We went to the nomination court and the court stated like that. ZEC then wrote to Parliament. The book that
I came to sign here indicated that I was a member of the MDC Alliance
Party –[HON. MEMBERS: Inaudible interjections] -
THE HON. SPEAKER: Order, order! –[HON. MEMBERS: Inaudible interjections] – I sympathise with you Hon. Mushoriwa. Take legal advice from Hon. Sikhala. The matter is subjudice and we cannot debate it here in Parliament. It is in court –[HON. MEMBERS: Inaudible interjections] – Order, order.
ANNOUNCEMENT BY THE HON. SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE
THE HON. SPEAKER: I have received a non- adverse report on the
Veterans of the Liberation Struggle Bill, H.B. 16 A, 2019.
VETERANS OF THE LIBERATION STRUGGLE BILL [H. B. 16,
Amendments to Clauses 2, 3 and 8 put and agreed to.
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
VETERANS OF THE LIBERATION STRUGGLE BILL [H.B. 16,
THE DEPUTY MINISTER OF DEFENCE AND WAR
VETERANS AFFAIRS (HON. MATEMADANDA): Mr. Speaker Sir,
I now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Speaker Sir, I move that Order of the Day, No. 1 be stood over until Order of the Day, No. 2 has been disposed of.
Motion put and agreed to.
CONSTITUTIONAL COURT BILL [H.B. 11, 2019]
Second Order read: Adjourned debate on motion on the Second
Reading of the Constitutional Court Bill [H. B. 11, 2019].
Question again proposed.
HON. MATARANYIKA: Thank you very much Mr. Speaker Sir for allowing me to present the Justice Committee Report on the Constitutional Court Bill. The Constitutional Court Bill was gazetted on the 13th September 2019 and provides for the manner in which the Constitutional Court may exercise its jurisdiction. The Bill confers additional jurisdiction upon the Constitutional Court and provides for its powers, practice and procedures. It further provides the making of rules and regulations of the Constitutional Court and makes provision for appeals from decisions of inferior courts.
Section 117 of the Constitution states that the legislative authority of Zimbabwe...
THE HON. SPEAKER: Order. The Hon. Members by the
entrance on my left, can you listen so that you can participate in the debate more intelligently. Thank you.
HON. MATARANYIKA: Thank you Mr. Speaker Sir. Section 117 of the Constitution states that the legislative authority of Zimbabwe is derived from the people; further, section 141 states that Parliament must facilitate public involvement in its legislative and other processes and in the process of its Committees. Parliament must also ensure that interested parties are consulted about Bills being considered by Parliament. Therefore, in fulfilment of these constitutional provisions, the Portfolio Committee on Justice, Legal and Parliamentary Affairs conducted public hearings on the Constitutional Court Bill in Gweru,
Bulawayo, Masvingo, Mutare and Harare to gather people’s views on the Bill.
I now move on to submissions from members of the public.
Clause 1 is the Short Title and there was no issue on that.
Clause 2, there are definitions and there were no issues.
Clause 3, nature of court and seal, there were no comments raised.
Clause 4, composition, members of the public were satisfied with the provision.
Clause 5, decisions of the court.
Clause 5 of the Bill provides for the manner in which decisions are made by the Constitutional Court. Decisions are made by the majority of judges sitting at any particular time. This clause also gives power
HON. GONESE: On a point of order Mr. Speaker.
THE HON. SPEAKER: What is your point of order?
HON. GONESE: Thank you very much Mr. Speaker Sir. I am a member of the Justice, Legal and Parliamentary Affairs Committee. We have four teams which went out on the public meetings and I was part of one of the teams. Yesterday when we had a meeting, we deliberated and the draft report was supposed to be presented but as far as I am aware ...
THE HON. SPEAKER: Talk to me, the draft report was supposed to be what?
HON. GONESE: Debated but when we were in the meeting, various sentiments were expressed and my recollection was that after deliberating on the issue, we agreed that we were going to meet on
Wednesday next week – [HON. MEMBERS: Inaudible interjections.] – No, no. I was there in the meeting. I am not aware of the adoption of the report.
HON. NDUNA: Mr. Speaker Sir, may I respond. He is out of line.
It is not the same report that our Chairman is reading. Mr. Speaker Sir, can you indulge our Chairman to continue. Hon. Gonese is out of line –
[HON. MEMBERS: Inaudible interjections.] –
THE HON. SPEAKER: Order, order! Hon. Gonese, have you followed the Order Paper?
HON. GONESE: Sorry Mr. Speaker Sir. I thought it was the Constitutional Amendment Bill not the Constitutional Court Bill. My apologies – [HON. MEMBERS: Inaudible interjections.] –
THE HON. SPEAKER: Order. May Hon. Mataranyika be heard
in silence please.
HON. MATARANYIKA: This clause also gives power to the Chief Justice to appoint an acting judge where one of the judges is no longer able to continue sitting as a judge due to death, physical incapacity or retirement.
The public was of the view that the clause should specify a gender balance in the Judges in the ratio 5:4.
3.6 Clause 6: Appeals from the Supreme Court.
The clause provides for an exception to the appeal procedure. It provides that an appeal from the Supreme Court to the Constitutional Court does not suspend the decision being appealed against, unless ordered by the Constitutional Court.
Generally, in civil proceedings, a decision made by an inferior court is suspended until the appeal is finalized. The public was of the view that if one lodges a complaint with the Constitutional Court, the
ruling from lower courts should be suspended.
3.7 Clause 7: Judge not to sit on any matter he/she has previously decided.
The proviso prohibits a judge to sit in a matter where he or she has formally participated in the making of the previous decision concerning the same matter. This is to avoid conflict of interest.
The public was of the view that the Bill does not distinguish which
Judges preside in the Supreme Court and in the Constitutional Court. They suggested that there should be a distinction on who sits
on which court.
3.8 Clause 8: Scope and Execution process.
No issues were raised.
3.9 Clause 9: Certified Copies of Court Records admissible as evidence.
3.10 Clause 10: Sittings and vacations.
There were no comments.
3.11 Clause 11: Contempt of Court.
The clause provides that any person who demonstrates dishonorable conduct to the Constitutional Court shall be guilty of contempt of court.
Members of the public were of the view that the clause is vague as it does not clarify what dishonorable conduct entails.
3.12 Clause 12: Right of person to be presented at the hearing of his/her matter.
The clause provides that a person who is not in custody is entitled to be present at hearing of his or her matter. It further provides that a person who is in custody is not entitled to be present at the hearing of his or her appeal, except with leave of a judge.
The public proposed that the Bill should take into consideration the application of leave to the judges especially for inmates who are unable to make applications while incustody. It was further alluded that the provision is a violation of the right to be present in one’s hearing and proposed that the Bill should take note of the difficult
economic conditions in Zimbabwe.
3.13 Clause13: Right of audience.
The clause creates the right of every person to be heard by the
The public welcomed this provision and suggested that the Bill should outline the procedure for bringing a case to the Constitutional
3.14 Clause 14: Legal Aid.
No comments were received.
3.15 Clause 15: Proceedings in open court and in English.
The clause provides that all proceedings of the Constitutional
Court shall be carried out in open court using English language.
Members of the public were of the view that the use of English only contravenes Section 16 of the Constitution which recognises 16 official languages. They suggested that the clause should incorporate
all the 16 official languages in Constitutional Court proceedings.
3.16 Clause 16: Appointment of Registrar and officers of court.
There were no comments.
3.17 Clause 17: Powers of Court in Appeals and confirmations.
There were no comments.
3.18 Clause 18: Powers of the Court in applications and referrals.
The clause provides for the procedure which the Constitutional
Court may follow in hearing applications or referrals brought before it. The Constitutional Court may refuse the application or grant the order applied for, and may make order as to costs as it thinks fit.
The general feeling of the public was that technicalities are taking away the right to access the Constitutional Court. Members of the public opined that the Bill should include a clause that once a case is lodged at the Constitutional Court it cannot be refused on the basis
3.19 Clause 19: Review powers.
The clause provides that the Constitutional Court has power to review the proceeding and decisions of the Supreme Court, the High Court and all other subordinate courts, tribunals and administrative authorities.
Members of the public expressed satisfaction with the clause as it
3.20 Clause 20: Inherent powers of the court: There were no comments.
3.21 Clause 21: Statement of case or question of law arising in a matter before the court.
There were no comments.
3.22 Clause 22: Procedure for invalidation of law.
The clause provides for the procedure for invalidation of law, where it is in contravention of the Constitution. The Minister responsible for administration of the law and the Attorney General may be invited to make representations before the matter is heard by the
Members of the public were of the view that this provision is not feasible. They proposed that the Minister responsible for legislation and the Attorney General must always be part of litigation to save time.
3.23 Clause 23: Conflict of constitutional and statutory remedies.
The clause provides that the Constitutional Court can refuse to entertain any matter instituted by any person where there is another remedy available to such person.
Some members of the public were of the view that Clause 23 contradicts Clause 13( Right of audience) and should be removed.
3.24 Clause 24: Correction, variation or rescission of judgements or orders.
There were no comments.
3.25 Clause 25: Regulatory powers to fix fees and allowances.
The clause provides that the Minister may make regulations for fixing the fees and allowances for services by the Registrar’s office.
The public were of the view that the costs of the Constitutional Court are too high, making it difficult for the poor to access it. They bemoaned the prejudice that is caused to marginalised members of the
society due to nature of costs involved.
3.26 Clause 26: Rules of the Court.
There were no comments.
3.27 Clause 27: Practice directions.
The clause provides that the Chief Justice may issue practice directives on any matter. These are equivalent to court practice notes and mainly relate to the procedures to be followed in matters brought before the Constitutional Court. They are meant to facilitate the proper conduct of the Constitutional Court business.
Some members of the public suggested that these powers should be vested with the Judicial Service Commission in order to avoid arbitrary decisions.
4.0 COMMITTEE OBSERVATIONS AND
4.1 On Clause 4: Relating to Composition of the Court, the
Committee recommends for an additional sub clause which states that in the absence of the Chief Justice, or if the office of the Chief Justice is vacant, the Deputy Chief Justice must exercise the powers or perform the functions of the Chief Justice as Acting Chief Justice.
4.2 On Clause 5 relating to Decisions of the Court, where at any stage during the hearing of any matter, a judge retires or dies or is absent, where there is a difference of opinion on an appeal or application being heard by an even number of the remaining judges of the court, the Committee recommends that the decision of the court should be suspended until opinion of a further judge of the court has been obtained, and there upon the decision of the majority of such judges shall be the decision of the court.
4.3 The Committee recommends for an additional clause that allows a person with expertise in a particular matter which is before the Court to appear as a friend of the court (Friend of Court).
4.4 On Clause 8 on the Scope and Execution of Process, the
Committee recommends insertion of a sub- clause which gives power to Sheriff subject to applicable rules, to execute all sentences, judgements, writs, summons, rules, orders, warrants, commands and processes and must make return of the manner of execution there-of to the court and to the party whose instance they were issued.
4.5 On Clause 10 relating to Sittings and Vacations, the Committee recommends that the Court should have such recess periods as may be determined by the Chief Justice in order to enable judges to do research and to attend to outstanding or prospective judicial functions that may be assigned to them.
4.6 On Clause 13 relating to Right of Audience, the Committee recommends that proceedings before the court be instituted by any person acting in his own interest, any person acting on behalf of another person who cannot act for himself, any person acting as a member, or on the interest of a group or class of persons, any person acting in the public interest and any association acting in the interests of its members.
4.7 On Clause 27 relating to Practice Directions, the Committee recommends that the Chief Justice should consult with the Rules Committee when issuing practice directives for facilitation of proper dispatch and conduct of the business of the court.
The powers to test the constitutionality of legislation are aimed at ensuring that no legislation that is in conflict with the Constitution is passed. Previously, there was no express provision to this effect, which created the risk that legislation could be passed with a view to limiting rights and freedoms. It is also encouraging to note that the
Constitutional Court has managed to set aside a number of provisions in pieces of legislation that are in direct conflict with the Constitution. The powers conferred upon the Constitutional Court will furthermore ensure that checks and balances are applied on Parliament and the Executive branches of Government. If these powers are exercised by an independent and impartial judiciary, it will bode well for the protection of human rights in the country.
HON. NDUNA: Thank you Mr. Speaker Sir. Mr. Speaker Sir, I am a member of the Committee on Justice, Legal and Parliamentary Affairs and applaud the report from our Chairman and just want to add a few issues that arose during our public hearings. This is my new found haven, Mr. Speaker Sir. Having served in the Military for about three years as a defending officer, I think I am nearly getting qualified to be a learned colleague in terms of the legal fraternity.
Mr. Speaker Sir, just for the avoidance of doubt, there are four functions. I am alive to the fact that we are now debating this report after the Constitutional Court has been separated from the Supreme Court judges. There is now an appointment of an independent
Constituional Court from the initial set up that had the inclusion of Supreme Court judges and being also the constitutional bench, Mr.
Mr. Speaker Sir, I will first touch on Clause 15 so that I just cement the issues that came up. There was an outcry that there be a permanent feature in terms of the languages that are so defined in the Constitution, the 16 languages. Mr. Speaker Sir, according to your guidance, it is in Section 6 or Section 7 of the Constitution. There was an outcry that there be a permanent feature in terms of braille for those that are blind and also permanent friend of the court in terms of technical aptitude in terms of the sign language.
I should also go further, Mr. Speaker Sir, and say such misalignment of our Acts gives a lot of burden to the Constitutional Courts or to our courts, but this issue of braille and sign language, if it is engrained and embedded in the Constitutional Court operations, I go further and propose that it also be a permanent feature in the health sector because a lot of our people do not get health services because there is no braille and there is no sign language. So this was an outcry from our public hearing that it should not only arise when there is someone that seeks those services, but should be a permanent section, Mr. Speaker Sir.
THE HON. SPEAKER: Order. Avoid being on a fine edge where you may appear to be giving your own secondary report. You need to bolster what has been reported, otherwise we get the impression that you are giving a separate report – [AN HON. MEMBER: He was once a
HON. NDUNA: I had to remove my mask so that he sees my facial expression. He said I was once a Chairperson but he left out the vibrancy.
THE HON. SPEAKER: That is what I have been looking out for
- vibrancy of the report as read by your Chairman.
HON. NDUNA: Thank you Mr. Speaker Sir. Sometimes it helps to have these facial expressions come out, but behind the mask Mr. Speaker Sir. They are inconclusive and you cannot really see. The issue of the full functions of the Constitutional Court, I put this across, it was our observation as read by the Hon. Chair, but I thought that I should amplify that the Constitutional Court is involved in the drafting of the Constitution. The second issue is the judicial review of the legislature and the judicial. ...
THE HON. SPEAKER: The Constitutional Court is involved in drafting the Constitution?
HON. NDUNA: The drafting of the Constitution itself Mr.
THE HON. SPEAKER: Is that what your Committee said?
HON. NDUNA: Mr. Speaker Sir, as I debate I believe in all honest that I am allowed to have some input in the observations that we had.
THE HON. SPEAKER: You are quite right Hon. Member but I cannot allow misleading statements. The Constitutional Court does not draft a Constitution, unless if your Committee said that, then I will be very surprised.
HON. NDUNA: Mr. Speaker Sir, I will go to the second issue of judicial review of the Legislature. The third one will be the jurisdiction over Government officials and agencies. The fourth and the last one is jurisdiction over parties and elections. However, there are administrative or administration courts established according to the Constitutional Court that review such issues. Having said that, I want to thank you for giving me this opportunity to vociferously, effectively and efficiently put my input on the Constitutional Amendment Bill and the people of Chegutu West send their love.
THE HON. SPEAKER: For the purpose of correct records, I think your first observation must be withdrawn that the Constitutional
Court drafts the Constitution.
HON. NDUNA: It is withdrawn Mr. Speaker Sir.
THE HON. SPEAKER: Thank you.
HON. M. MAVHUNGA: Thank you Mr. Speaker Sir. I would
like to thank the Hon. Minister for bringing this Bill to Parliament and also the Chairman’s report as regards to the observations which were made by Members of the Committee. The Zimbabwean Constitution was enacted in 2013 and this Bill is coming before you in 2020 This brings us back to the issue that he once raised, that of inertia and by now, we should actually have this Constitutional Court Act but thank you to the Minister. He has brought it forward and we are going to have it but we have had a problem because of this delay. We now have a Constitutional Court like Hon. Nduna said before - we even have an Act which governs the Constitutional Court, despite the fact that it is contained in the Constitution that there must be a Constitutional Court.
The Act does not exist yet we already have the Constitutional Court. So, this is a result of inertia, otherwise we should have an Act first before we have the Constitutional Court.
My second observation is that, because of this delay, we already have regulations which were promulgated relating to the operations of the Constitutional Court by the Minister. The Minister was supposed to be empowered by the Act to pass those regulations; but because of inertia, he had to promulgate those regulations, otherwise the
Constitutional court was going to operate without regulation. So really, there was nothing that the Minister could do. I sympathise with him that we now have Constitutional Court rules before we have an Act which empowers the Minister to do so. I notice that in the proposed
Bill that it is retrospectively trying to empower the Minister to do that.
Mr. Speaker Sir, my other contribution relates to the office of the Chief Justice. The Chief Justice is the head of the Supreme Court and the Chief Justice is the head of the Constitutional Court. The Chief
Justice can decide to sit in the Supreme Court and he can decide to sit in the Constitutional Court. If the Chief Justice sits in the Supreme Court, he can no longer sit in the Constitutional Court in the event that there is an appeal from the Supreme Court to the Constitutional Court.
My point is that, the Chief Justice is the one who appoints judges who sit on a Constitutional Court matter. So, if he sits in a lower court like the Supreme Court, and then decides who sits in the Constitutional Court, he may have granted an order in the Supreme Court, but he is the very same person who is going to decide who will then hear the appeal in the Constitutional Court. There is a gap there Mr. Speaker Sir. I was proposing that the Chief Justice’s role should be purely administrative as far as the Supreme Court is concerned. The Chief Justice should simply sit in the Constitutional Court so that any decisions that he makes will actually be final and binding. If he sits in the Supreme Court, those decisions can be appealed to the
Constitutional Court and he is the one who appoints the judges for the Constitutional Court - never mind that he is not going to be part of that team. So, my proposal is that the administrative role of the Chief Justice in the Supreme Court cannot be taken away, it will be left like that but, in the Constitutional Court, he can sit as a judge.
My other contribution Mr. Speaker Sir, relates to the issue where one has lost a case in the Supreme Court and now wants to approach the Constitutional Court. The Bill proposes that you do not have a right of audience directly to the Constitutional Court. What you need to do if you have lost in the Supreme Court, you will seek leave or permission from the very same judge who has dismissed your case for you to be granted leave to approach the Constitutional Court.
My first observation on that is that, there should be no need for one to seek leave to appeal to the Constitutional Court, given that we will be dealing with fundamental constitutional issues. There should be an automatic right to the Constitutional Court. The second point which is also coming out of that is that the very same judge who has dismissed my case has to grant me leave for me to go to the Constitutional Court. In other words, he is saying I might be wrong in my decision. In most cases, we have seen applications for leave to appeal to a higher court being dismissed on the basis that the judge who would have presided over that matter is of the view that you do not have any merits in regard to the matter that you then want to take to a superior court.
My proposal Mr. Speaker Sir is that there should be no leave to be granted for one to note an appeal. It should be an automatic appeal to the Constitutional Court.
Mr. Speaker Sir, my other contribution relates to the rights of accused persons in as far as approaching the Constitutional Court is concerned. The Bill proposes that there is no right for an accused person to be present when a Constitutional issue is being heard in the Constitutional Court. The correct position should be that if you can afford the cost, because I understand the issue in regard to the cost – who would then foot the cost for you as an individual who is not legally represented to come to the Constitutional Court. If one can afford to approach the Constitutional Court at his own cost, why not allow such a person to have audience or when his matter is being heard in the
Constitutional Court than to assert in the Bill that you do not really
need to be there. If you have to be there in terms of the Bill, you will have to seek leave again from the court. In other words you apply to the court for you to be given permission to be present and it should be the other way round and not for me to apply to be given permission. If there is a reason that I should not be there, then there should be leave by the court for me not to be there. This court Mr. Speaker Sir, protects fundamental human rights. So really, the presence of an accused person or a complainant for that matter at the hearing of their matters is critical. The Bill proposes that if you want to approach the Constitutional Court, you must not have relief in any other court. In other words, if relief that you seek can be obtained from any other court, then you cannot approach the Constitutional Court. The Constitutional Court will simply tell you that go back to the Magistrates Court because the Magistrates Court can provide such a relief.
It is my submission that once one has approached the
Constitutional Court, that issue must be determined by the
Constitutional Court without referring this person to any other court. Of late we have heard cases where because of that technicality that the relief is available elsewhere you cannot approach the Constitutional Court. This is the point that I make Mr. Speaker Sir that if the relief can be available in any other court, the Magistrate Court, High Court and Supreme Court, if one has approached the Constitutional Court, it must not be so technical to say that your relief is available elsewhere, you cannot come to this court. This is a court which deals with issues to do with the Constitution. Once a litigant is before the Constitutional Court, let him be heard rather than refer him to another court.
Finally, my contribution goes on to the issue of official language. More often than not, we have English language as the official language but like Hon Nduna has said, I think there is need to broaden that in respect of the Constitutional Court. The Constitutional Court like the Chairman of the Committee has said, must not be so technical when dealing with constitutional issues, especially human rights issues. They must approach the cases with an open door and dismiss any technicalities that may be raised which may try to hinder the passing of the judgments by the Constitutional Court. Those were my observations in regard to the Constitutional Court Bill. I thank you.
HON. PHULU: I will commence my debate by commending the Chairperson of the Justice Committee for giving a lucid, clear and honest report of the views that were given by the people as the
Committee went around. By the way I am a member of that
Committee. Having said that I do not think I need to buttress anything that he said because it is clear. I will go ahead to congratulate the Minister as well for bringing this important Bill before the House.
Section 324 makes it very important for all constitutional obligations to be implemented without delay. The previous Hon Member has already indicated that it is quite a good thing that this Bill is before the House, given the importance of the Constitutional Court and the importance of the functions that it discharges. Certainly all
Zimbabweans should applaud that we now have this court. It takes away the embarrassment on the part of the Minister in as far as regulations and many other things and actually guides the judges as they exercise their mandate will have somewhere to draw from.
I have a few observations to make which I hope will add value even as we go into Committee. The first one that I will comment about in brief relates to the use of the English language. Of course, the English language is the language of record for the courts and certainly in as far as the pleadings -because there is reference to pleadings in that particular Section being in English. English being as far as possible – they have tried to couch it to be permissive but we would like to submit that given our history, and the importance of the language issue which has been included in our Constitution for the first time, we should go further in the way that we try to couch it to show that as far as possible, these other languages which have been recognised as official languages may be used under certain directions, I suppose because we have to consider that the courts would have the capacity to deal with those languages.
As a legal practitioner I have appeared in a number of cases and I remember in one case before the High Court, I said to the judge ukubona kanye ukubona kabili and this was in mitigation. The judge said to me what does that mean in English. I was quite stumped as to how I could put it. An interpreter came to my aid, but the judge I knew understood what I meant because he understood the language. Even in those circumstances, I wish to say that a judge cannot take judicial knowledge of his understanding of a particular language to apply it. It would take ingenuity between the Minister and ourselves to find how we can approach that section in Committee and couch it. The point of the matter is that we must show that we want to take Section 6 in terms of our languages a step further in terms of how we couch this.
In other countries like South Africa, we know that in their courts they do use Afrikaans, even in judgments and so forth. I do not know whether we are in a position to take that leap, given the number of the languages all of them being accorded equal importance. It would be interesting to see what we can do with that clause.
The next point that I would like to comment upon relates to Clause 12, the Rights of Persons, particularly those who are incarcerated to be able to appear when their constitutional matters are being decided. The State in this case should not take the issue of costs into consideration in as far as people who are incarcerated are concerned. Whenever somebody wants to approach the Constitutional Court, they have a burning issue which impinges on their rights or other people’s rights and certainly because we have incarcerated them and we are taking care of them as a State, I think facilities should be provided for them where they desire to be able to appear in court one way or the other. Certainly we must not require them to pay the costs because this would put them in very difficult position because they are after all incarcerated.
The last point that I would like to touch upon is the issue that has been raised to do with other statutory remedies. Again if you go to
Section 23, it says the court may decline and it says that if it is satisfied that there have been or there are other adequate means of redress, it appears reasonable, except to say that if you go to Section 85 (2) (b) of the Constitution- particularly where human rights issues are concerned, it says that we must ensure that technicalities or formalities are kept to a minimum. I would say that perhaps we need to look at that in as far as where the Declaration of Rights is concerned, to take the approach which they have taken to interpret that Section 85 to try and make it – I know this can be done in the rules and the Constitution does say this can be done in the rules. The act itself must put in place simple procedures that you would find in a communication for example before the African Commission where a simple person can write a simple letter, and as long as they satisfy certain preliminary issues to do with language couching in as much as the manner in which we bring petitions before the Speaker. I am saying that simple letters, as long as the court can identify the issue even if it means creating a procedure where the matters go to Chambers for admissibility hearing, the first.
This will allow elderly people, simple people who have issues to be able to write letters to our highest court in the land and those matters being able to be admitted if there is a real issue. I think this is one issue that we might need to consider.
Mr. Speaker Sir, on the whole, I would like to say that the Act is an Act that the people of Zimbabwe have welcomed. It is not any Act against which anybody has any guiles whatsoever. We look forward to this Act going through Committee and being enacted, enhancing the level and the quality of the justice that is dispensed at the end of the day. I thank you Mr. Speaker Sir.
HON. CHINYANGANYA: Thank you so much Mr. Speaker Sir,
for giving me this opportunity to add my voice to this debate. I also want to thank my Chairperson Hon. Mataranyika, for presenting the report. I do not have many issues to touch on except to buttress the issue of seeking leave to appeal from the judge who would have presided over the matter. Mr. Speaker Sir, this provision to me does not make much sense because in most cases the judge who would have presided over the case will still be belittled if the decision is going to be appealed against.
It is my view that this provision should be removed from the Bill.
Also, I want to touch on the issue of dismissing cases on the issue of technicalities. In most cases, cases are dismissed on technicalities without touching the merits. We are talking about constitutional matters which are relevant. I am of the view that this provision really removes the tenets of justice. So matters in Constitutional Court should not be dismissed on a technicality but the Constitutional Court should deal with the merits of the case. Those are my submissions Mr.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker Sir. I want to thank the Chairperson of the Committee for a very good report and the Hon. Members that have contributed to the debate. I want to do justice to the contributions from the Committee and from the Hon. Members. Therefore, I will make a detailed response when we sit next.
Mr. Speaker, I now move that the debate do now adjourn.
Motion put and agreed to.
Debate to resume: Tuesday, 7th July, 2020.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Speaker, I move that Orders of the Day, Numbers 3 to 9 be stood over until Order Number 10 has been disposed of.
Motion put and agreed to.
REPORT OF THE PORTFOLIO COMMITTEE ON JUSTICE,
LEGAL AND PARLIAMENTARY AFFAIRS ON ZIMBABWE ELECTIONS
SUPPORT NETWORK’S PETITION TO
PARLIAMENT ON ELECTORAL REFORMS
HON. MATARANYIKA: I move the motion standing in my name that this House takes note of the Report of the Portfolio
Committee on Justice, Legal and Parliamentary Affairs on Zimbabwe
Elections Support Network’s Petition to Parliament on Electoral Reforms.
HON. TOGAREPI: I second.
1.1 The Zimbabwe Election Support Network (ZESN) lodged a petition with the Parliament of Zimbabwe (POZ). On the 2nd of March
2019, the petition was referred to the Portfolio Committee on Justice, Legal and Parliamentary Affairs (herein after referred to as the Justice
Committee) for consideration and reporting.
1.2 The petition raised a number of issues that ZESN considered of critical importance if electoral issues were to be addressed before the advent of the next set of polls in 2023.
2.1 In order to get a better understanding of the petition, the
Committee invited and heard oral submissions from ZESN on 21st
March 2019. The engagement not only helped the Committee to hear from the petitioners on the substance of the issues that they raised in the petition, but also enabled the Committee to decide on the way forward.
2.2 From 4th - 5th June 2019, the Committee attended a workshop in Kariba at which ZESN sought to amplify through technical and expert submissions, the issues that it had raised in the petition. The Committee is grateful to Hon Adv. J. F. Mudenda for gracing the Kariba workshop.
The Speaker’s interventions were profound.
2.3 Between 26th and 29th July 2019, an all-stakeholders conference on the petition was facilitated by the Southern African
Parliamentary Support Trust (SAPST) at the Kadoma Hotel and Conference Centre. The Committee is grateful for this support.
2.4 The Kadoma conference was attended by the Committee, representatives of Government including the Minister of Justice, Legal and Parliamentary Affairs, the Zimbabwe Gender Commission (ZGC), the Zimbabwe Human Rights Commission (ZHRC), the Zimbabwe
Republic Police (ZRP), the Zimbabwe Media Commission (ZMC), the
Zimbabwe Electoral Commission (ZEC) and civil society organisations
(CSOs). The Hon. Speaker and the Clerk of Parliament led the Administration of Parliament at the conference. The Committee is indebted to the Speaker for his presence and contributions throughout the conference.
2.5 The Kadoma conference resolved inter alia that ZESN and its network craft some of their recommendations and submissions into the format of legal provisions for consideration by the Committee in the form of a Model Law (see attached, the Model Electoral Law).
2.6 What follows below is a summary of the Committee’s findings, observations and recommendations with respect to the issues raised in the petition.
3.0 COMMITTEE’S KEY FINDINGS
3.1 The Legal Framework:
3.1.1 ZESN implored Parliament, in its legislative functions, to review the legal framework on elections with a view to bringing them into conformity with the letter and spirit of the 2013 Constitution. It highlighted the need to enhance the independence of the ZEC, and to give meaning to aspects of the African Charter on Democracy Elections and Governance that Zimbabwe signed in February 2018, a few months into the new dispensation. In terms of section 327 of the Constitution,
Parliament approved for ratification of the Charter on 27th March 2019. The ratification of the Charter would pave way for the domestication of the same in terms of section 34 of the Constitution.
3.1.2 ZESN acknowledges that the independence of ZEC is guaranteed under section 235 of the Constitution. The issue is whether some provisions of the Electoral Act under subsidiary legislation made thereunder detract from this independence.
3.2 The Political Environment:
3.2.1 The petitioners submitted that the political environment in
Zimbabwe was reinforced by such statutes as the Public Order and
Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA), which they stated have coloured the political environment in ways that do not speak to the spirit of a more democratic constitutional framework ushered in by the 2013 Constitution. To that end, they implored Parliament to repeal such statutes that erode citizens’ rights.
3.2.2 The Committee notes submissions by the Minister of Justice,
Legal and Parliamentary Affairs to the effect that Government was working flat out to reform the legal framework in line with the spirit of the Second Republic. It further notes the enactment of the
Maintenance of Peace and Order Act which repealed POSA. The Committee encourages the Executive to keep the political reform thrust alive to ensure that Zimbabwe abides by the spirit of its own Constitution.
3.2.3 The petitioners also implored Parliament to create a legal framework that punishes vote buying and irregular electoral practices.
The Committee finds this consonant with the spirit of the African Charter on Democracy, Elections and Governance.
3.2.4 The Committee is indebted to the President of the Chiefs’
Council, Chief Charumbira, whose candid comments were very helpful. He pointed out some of the deficiencies with a legal framework that starts from the premise: “must not”, without specifying what traditional leaders could in fact do. This was in reference to section 281 (2) of the Constitution, which provides for principles to be observed by traditional leaders.
3.3 Voter Registration and the Voters Roll:
3.3.1 Amongst the issues highlighted by the petitioners were the following:
- the need for ZEC to advise registrants that are removed from the voters’ roll as well as those on the exclusion list. Deduplication ought to be transparent; ii. guaranteed access to the voters roll for all contestants within prescribed time-frames. This includes availing the roll to election agents on election day; iii. a registration framework that is facilitative and makes it easy for citizens to register as voters, especially in urban areas,
and iv. procurement of equipment that can be used for multiple
3.3.2 The Committee sought the views of the Electoral
Management Body, ZEC on these issues. ZEC advised that all the issues raised by the petitioners were in fact none-issues as they were already addressed by the current framework.
3.4 The Provision of Voter Education:
3.4.1 The petitioners contended that voter education should be linked to the secrecy of the vote. They also submitted that the provision of voter education should permeate the electoral cycle, and be opened to a wider range of players beyond the Zimbabwe Electoral Commission.
3.4.2 The Committee was advised by the Commission that there was nothing untoward about the current framework that accords the
Commission a more prominent role in the provision of voter education.
3.4.3 The Committee is alive to the challenges with respect to the funding of public institutions in Zimbabwe, and the impact that this has to the provision of voter education throughout the electoral cycle. Often times, voter education by the Commission is carried out very close to the polls, indeed after proclamation.
3.5 The Right to Vote and Inclusivity:
3.5.1 The petitioners contend that, to the extent that the Constitution confers the right to vote to all citizens of Zimbabwe, it is incumbent upon the institution of Parliament that all impediments are cleared that disenfranchise some citizens. This, they contend, accords with the right to universal adult suffrage recognised by the Constitution1but is also in keeping with international benchmarks to which Zimbabwe is party, including the African Charter on Elections, Democracy and Governance (ACDEG). In this regard, the petitioners argue that the exclusion of Zimbabweans in the Diaspora amounts to disenfranchisement and exclusion, particularly as Zimbabwe only conducts Diaspora voting for those in the service of the State.
3.5.2 The Committee is alive to submissions by the Honourable Minister of Justice, Legal and Parliamentary Affairs, as well as those by the Chairperson of the Zimbabwe Electoral Commission ZEC, that the
Fourth Schedule excludes citizens in the Diaspora on private missions.
3.5.3 The Committee is guided by the following factors:
- The approach of the Constitutional Court in the 2015 marriages judgment where-in it took the approach that where Zimbabwe has signed or acceded to an international legal instrument, it must be guided accordingly;
- International best practice, including the approach of several countries in the region which appears inclined towards inclusivity; and
- The ethos of the Second Republic, leaning heavily as it does towards greater freedoms and inclusivity.
3.6 Election Observation:
3.6.1 The petitioners contended that the Accreditation Committee that is involved in the invitation of electoral observer missions to Zimbabwean polls is dominated by members of the Executive. This is because of the numbers of representatives that come from institutions of the Executive. The Commission itself, in submissions made to the
Committee, supported in that regard by the Honourable Minister of Justice, Legal and Parliamentary Affairs contended that the process is in fact Electoral Management Body-led.
3.7 Delimitation of Constituencies:
- The petitioners pointed out that since 2008, Zimbabwe had conducted three sets of elections on the basis of the 2008 delimitation.
- This, they argued, is against the principle of the equality of votes. Some constituencies have become very large, while others have remained shrunk.
3.8 Election Administration:
- The petitioners submitted that Zimbabwean polls are riddled with conflict and perceptions that need addressing by the ZEC through administrative practice. The ZEC on its part submitted that it is guided by the legal framework, and that if there are any shortcomings, these should be addressed through the law.
- The Committee notes that most of the issues around elections are spelt out by the law. It also acknowledges that ZEC is a creature of statute and as such, it must be guided by statute. This however does not preclude ZEC from development and perfection of a culture of processes that address trust issues.
3.9 Political Parties:
- The petitioners argued before the Committee that political parties in Zimbabwe remained largely unregulated. They believed that there is need to review this position as one way of addressing some problems in the electoral process, including electoral malpractice which include vote buying, failure to account for campaign finance and electoral violence, gender equality and inclusivity, amongst others.
- Submissions by ZEC and the Executive tended to support a certain level of regulation of political parties.
- The petitioners made reference to the historical disadvantages that women have been subjected to in terms of representation in the electoral process, amongst others. They also referred to the attempts by the 2013 Constitution to address the gender disparity, and the shortcomings of that framework.
- The Committee engaged the Zimbabwe Gender
Commission and several representatives of civil society on the matter. The Zimbabwe Gender Commission is working on a formula to address gender parity issues around elections that the Committee requests the relevant authorities to consider.
3.11.1 The petitioners argued that the current framework does not fully embrace youth participation, and urged its review.
3.12 Persons with Disability:
- The petitioners bemoaned the failure by the current framework to fully embrace disability.
- Submissions were made with respect to all aspects of the electoral process from the pre-election, the election and the post-election phases, and how these tended to paper over or ignore issues of disability.
Zimbabwe is party to international legal instruments on disability.
3.13 Election Day and Results Management:
- The petitioners argued that the Election Day results management framework can be the source of poll disputes, and needed review in order to address issues of conflict.
- In this regard, they contended that the election results transmission system for presidential elections needed perfection to avoid suspicions of manipulation.
- On its part, ZEC saw no issues with regard to this matter.
The Executive was content with the current framework.
- The Committee is alive to the conflicts around the election results management system and process, which have been features at previous polls.
3.14 Election Dispute Resolution:
3.14.1 Cognisant of the fact that the judicial mechanisms for the resolution of electoral disputes may not be sufficient in themselves, the petitioners argued that there was need to strengthen other mechanisms, including the role of other institutions that contribute to this process, for instance the National Peace and Reconciliation
Zimbabwe Human Rights Commission, among others.
3.15 Media and Elections:
- The petitioners argued inter alia that while ZEC has in place the 2008 Regulations on the media, these were ineffective as had been proved at all elections since their inception.
- Indeed, the Committee is alive to a recent judgment on the discharge of electoral reportage by public media institutions.
- Submissions by the Chief Executive of the Zimbabwe
Media Commission also confirmed the media polarity in Zimbabwe.
- COMMITTEE’S OBSERVATIONS
Based on submissions from various stakeholders, the Committee observed the need for a comprehensive review of Zimbabwe’s electoral framework with the view of addressing gaps and inadequacies in the administration of elections. For democratic overhaul of the electoral law, the Committee notes the need to take into account the following issues:
- Enhancing the independence of ZEC and other Independent
Commissions connected to the electoral cycle.
- Enhancing the participation of women, the youth and persons with disability in the process, as voters and candidates.
- Reviewing the legal provisions around voter registration and voters roll.
- Reviewing the provisions on political party regulation.
- Tightening the provisions on the role of traditional leaders vis-a-vis the electoral process.
- Addressing deficiencies with respect to voter education provisions.
- Tightening provisions on results management to enhance transparency and reduce suspicion and results contestation.
- Streamlining the election dispute mechanisms.
- Reviewing the provisions regulating the media reportage of electoral processes.
- Enhancing electoral administration through clearer legal provisions and electoral practice, and
- Domesticating regional and international instruments to which Zimbabwe is party of.
- COMMITTEE’S RECOMMENDATIONS
In light of the above submissions and observations, the
Committee makes the following recommendations.
- The Government should urgently review all the relevant pieces of legislation relating to elections with a view to bringing them in line with the spirit of the Constitution. The new electoral Bill should be gazetted by June 2020. The provisions that offend the independence of ZEC must be reviewed. The Committee further recommends that measures be taken towards the domestication of the African Charter on Democracy, Elections and Governance. The signature and ratification of the document was an indication of an intention to be bound by its terms.
Accordingly, its provisions ought to find expression in the
- Access to the final voters roll must be guaranteed for all contestants as provided by law, and within a specific timeframe. ZEC must not arrogate unto itself discretion that is not provided for by law vis-a-vis access to the roll. Furthermore, the legal framework should facilitate for more permanent registration centres established even in remote areas and open throughout the electoral cycle. ZEC must also focus on continuous voter registration and cleaning of the voters roll.
- The electoral law must provide for continuous voter education by a broad range of actors that include the ZEC and civic society organisations. The voter education and the materials must be accessible to people with disabilities including those visually impaired.
- The Constitution grants every Zimbabwean the right to vote. In keeping with the thrust of the new dispensation to include citizens in the Diaspora in national development, the selective exclusion of
Zimbabweans in the Diaspora and those in places of confinement such as prisons and hospitals must be reviewed. This includes hospital staff, nurses and doctors who will be on duty on election day. The expansion of special voting must be considered to cater for these groups.
- Political neutrality on the part of traditional leaders is a constitutional imperative that must be enforced.
- Zimbabwe has conducted three sets of elections on the basis of one set of delimitation: 2008, 2013 and 2018 elections. As the year for the next set of harmonised elections is known, there is no reason why delimitation for the 2023 elections cannot be timeously conducted. There is need to rationalise constituencies that are too big and those that are too small. Clear regulations for delimitation must be put in place.
- Special voting amenable to transparent electoral principles and observation must be reinstated to guarantee the right to vote to those unable to vote on election day.
- Political parties play a critical role in the determination of the political environment among other issues. Their regulation therefore determines the extent to which the electoral process accords with democratic tenets. The legal framework must also provide for political parties financing and audits.
- The Committee recommends that the current legal framework be reviewed with a view to giving life to the principles of gender equality and parity in the Constitution. In this regard, it must also be necessary to compel political parties to recognise and implement the gender equality principles.
- In view of the statistics of the last voter registration process which reflected a youthful population, the legal framework must provide for youth participation as voters, candidates and as decision makers.
- ZEC must ensure mechanisms are put in place to facilitate voting by people with disabilities that guarantee the secrecy of the vote. Polling stations must be accessible to persons living with disabilities.
- ZEC must invest in a real time results transmission system. Furthermore, the Commission must pursue an open data policy that includes the prompt display of election result forms at polling stations for each polling station, disaggregated by demographic variables and post those forms on its website.
- The Committee recommends the strengthening of all dispute resolution mechanisms with a view to ensure the peaceful resolution of election related disputes throughout the electoral cycle. Independent
Commissions should be strengthened, especially the National Peace and
Reconciliation Commission, and the Zimbabwe Human Rights
Commission to effectively execute their respective roles in the electoral matters. The electoral law must reflect all these principles. Electoral petitions must be time-framed in the electoral law.
- ZEC media monitoring must be timely and effective. It must put in place effective mechanisms to ensure compliance. There must be mechanisms against hate speech and fake news on social media throughout the electoral cycle. The legal framework must also embrace media diversity and inclusion. Public media must be accessible to all parties.
The Committee implores the Executive, to urgently review the electoral law in compliance not only with the government’s national and international undertakings, but also with the provisions of the Constitution. The Committee sincerely hope that the suggested recommendations and the attached Electoral Model Bill will be seriously considered in crafting of the new electoral law as this will certainly improve future electoral processes. I thank you.
HON. NDUNA: Thank you Mr. Speaker Sir. I stand to second the report on the Zimbabwe Elections Support Network Petition on election reforms. I want to touch on a few issues to bolster the report presented by Hon. Chair, Hon. Mataranyika. Mr. Speaker Sir, a lot of issues that arise in this report, not because of the time that it was presented have been overtaken by events from the Executive which is applaudable.
Cognisant of the fact that the Executive, ably championed by the Hon. Minister of Justice, Legal and Parliamentary Affairs who also happens to be my Chairman in the province, Hon. Ziyambi Ziyambi, has gone ahead and conducted electoral reforms and aligned those issues with the Constitution. My issue Mr. Speaker Sir, speaks to and about the issues that are in this report; delinking the census and delimitation. The Hon. Minister has even gone ahead - it is just yesterday that we were debating the Census and Statistics Bill so that we can conduct our census in 2021, way before the elections in 2023, which is very applaudable.
The history of this Mr. Speaker Sir, we were always on point and on time. It should not frighten anyone that we should be seeking an amendment to get to align ourselves with the yester years; modus operandi where we were conducting our census every other 10 years and we were conducting our elections every other time after the effective and efficient census of that election. Mr. Speaker Sir, my point exactly is when we conducted elections in 2008, we were supposed to have had elections in 2010 but because of the GNU and the back and forth, the rigorous issues of political machinations, we found ourself having had elections in 2013. It then removed our alignment to 2010.
Mr. Speaker Sir, if we had our elections in 2010, we would have had elections in 2015. We would have elections in 2020, we would have had elections in 2025 and in which case we would have had to use the census and the delimitation process in 2022 after the initial 2012 run.
Having seen that and the wisdom of the Executive which is proactive,
Mr. Speaker Sir, this is the Second Republic, championed by His Excellency, the President E. D Mnangagwa. They have sought, because we are all creatures of an electoral process; we come to this august
House only on the back of a non-flawed electoral process. They saw it coming that in 2023, we might want to use archaic, moribund, rudimentary and antiquated piece of document that was last initiated in 2012 Mr. Speaker Sir. They have sought to rejuvenate and re-invigorate it in 2021. So I applaud them Mr. Speaker Sir. Having said that, I am coupling it with point number 6 of our recommendation; which speaks to and about 2008, 2013 and 2018 elections using the census and the boundaries of 2012.
Mr. Speaker Sir, I want to again talk on the issue of women empowerment. There should not be anything for women without women. The issue of their term coming to an end in 2023, the Executive has already brought in Constitutional Amendment Bill No. 2 that speaks to and about the extension of that period. We are all born of a woman and the gender agenda Mr. Speaker Sir – [HON. MEMBERS:
Inaudible interjections.] – Protect me Mr. Speaker Sir.
THE TEMPORARY SPEAKER: Order Hon. Member.
HON. NDUNA: It is the same women that I need to champion for. Yours truly is a He-for-She advocate. There is no amount of intimidation and pulling back that is going to also have me apply the PHD (pull her down) syndrome. I will always want to champion the issues of women empowerment. Mr. Speaker Sir, aware that in Zimbabwe, we have a 30% representation of women in Parliament and the continental average is on 20%, I am applauding the extension of the same to go forward. My point exactly resides in the proactiveness of the
Executive. I applaud them, they have gone further. Here, Mr. Speaker Sir, the observation of the Committee speaks about a youthful population and the Executive has also proposed in their Bill a youth quota about one youth in each province. A new proposal Mr. Speaker Sir. We need in this day and age to move with the times. On issues to do with youthful population and enhance their innovation and abilities to deal with the technology and all that. We need to collaborate, coordinate, network and remove the collusion, corruption and nepotism using that youthful age in our youth quota or the ten positions that have been proposed. My proposal is that we need to support this proposal and we need to see the youth in this Parliament, come 2023 from a youth quota to coupled with the gender agenda because the two give us 62% quantum of the population. What men can do, women can do better.
As I conclude, where ZEC is supposed to have an Electoral Act that speaks to the issue of the Electoral Court that subsists so that there are sanctions if that court is in session all the time until the next election, because we need to cater for by-elections after an election and the disputes that arise during a by-election should also be taken care of within that same life of Parliament before another election.
However, my point is that having coming through a rigorous electoral process myself, Chegutu West Constituency which was quite contested by one person who did not have the requisite V11, to substantiate their claim. Anyone who comes to the courts without the requisite evidence to substantiate their claim should be banned from taking part in any future elections, may be two further terms, next ten years before they can come back after recuperating and after coming to their senses.
One shudders to think what would happen to our electoral process if we continued to have such people with a mindset which diverts from our electoral process. It is very clear what it is that you need to bring before the courts if you are to challenge any win or any result arising from a credible constitutional democracy and election. We are perceived, guided, and respected by the way we respect our own Constitution. The Electoral Act is very clear. If you have any challenges, you need to go according to its expected end. If you divert from it somehow and you think you can come fulcrum, pith, core and whatever, as though you want to disturb of the Chief Justice, you need to face the consequences.
The Electoral Act provides for anybody who wants any review of any results to do it within the 48 hours, otherwise bring the V11s and respect the courts without just sitting and standing there and waxing lyrical and diverting from the core-business of the election. There should be sanctions for anybody that denigrates the electoral process. We need to follow the Constitution to the letter and core. Thank you for giving me this opportunity to eloquently ventilate the issues of Chegutu West constituents who have reposed their trust in me to come and represent them here. I thank you.
*HON. KARENYI: Thank you Mr. Speaker Sir. I heard a lot of men commenting. This is evidence that they know that women talk about personal experiences. Let me thank the Chairman for the report that he presented. This is the report that came after ZESN lodged their concerns regarding elections and electoral reforms. Let me continue saying that I heard someone saying that the Executive had deliberated on that issue proposing electoral reforms. Let me talk about a contentious issue particularly regarding the announcement of presidential results.
It is my desire and we know that as Zimbabwe, we have a history and we know that the presidential vote is not pleasing to the majority of Zimbabwe. It is my desire that these issues should be looked into and they should be considered in these reforms. My belief is that since the Minister of Justice is in the House, that issue should be looked into particularly the current stage that we are at as Zimbabwe is that there are a lot of contentions regarding elections. Easy time elections are held, people expect to get their results the following day after the election day.
Other countries do not have 24 hours before announcing the results.
These reforms should be looked into.
Let me talk about disability, Mr. Speaker Sir. Some people who go to elections, you will discover that election points are not convenient to those who use wheel chairs, those who are blind and those who need to be assisted. These issues should be covered in the electoral reforms. Let me remind you Mr. Speaker Sir and I am saying this as an individual that concerning reforms, there is an issue that has been raised concerning assisted voters. My desire is that this should be reviewed.
I remember when I was an MP for Chimanimani in 2008, the people who were being assisted to vote were less than 100. However, at the moment the pattern indicates that in the last election there were more than 1 500 assisted voters in Chimanimani. This shows that the electoral reform is not a good law which says that a person should bring another person who will assist them to vote. This makes them vulnerable and also exposes this system to abuse by different political parties, because some people end up being voted for by headmen and other people. We need laws which stipulate that people who are assisted belong to a certain or a particular age group. At times we say
25 year olds being assisted. So Mr. Speaker this means that we have laws that are not good - which end up forcing people to be voted for or
voted on behalf of.
In 2008 during the run off we ended up facing different challenges which culminated in the GNU which was mentioned by Hon. Nduna. This is because some people were being forced to vote for particular parties. My plea is that when these reforms are being done let us look at the blind, the disabled who cannot use their hands and the elderly. This should guide us in electoral reforms.
Instead of also including some people who might be intimidated, let me continue saying that, Mr. Speaker - ZESN examined this issue and considered that because of affirmative action, women were being left behind. This is my viewpoint. The Executive has managed to extend the PR issue by another two terms. As Hon. Karenyi I cannot say what I expect someone to say, but I can say what I feel as a woman. I want this to be on record. The Constitution clearly says that women are more than men. They are around 52% of the total population of Zimbabwe which means women decide who they want to vote for in the country. So Mr. Speaker Sir, without us - without the women, it means Zimbabwe might be facing destruction. My point is that the Constitution is very clear that there is gender balance in governance and in any other issue. We are saying Mr. Speaker, the 50/50 which is constitutional is what we are talking about.
We need to align the Constitution. Why do we give children sweets when we know they can just swallow? Other countries talk about the women’s quota then there are reserved seats and what have you. Mr. Speaker, my thoughts are that as we align reforms with the Constitution, we do not want to be given two terms but we expect 50/50. Out of 210 constituencies in Zimbabwe, we expect 105 being given to women. Why are men afraid to give 105 seats to women? We are equal in Zimbabwe. It is only at home where there is a demarcation between the mother and the father, the father being the head of the household. However in governance issues, in councils it is 50%, in commissions it should be 50%, in Parliament there should 50% representation and in the Cabinet there should be 50% representation.
Mr. Speaker Sir, as women, if we are women who want Zimbabwe to be progressive, reforms that were requested by ZESN, I believe it is high time that as Zimbabwe, we look at the Constitution which clearly stipulates that women should get a 50% share of resources in the country. Let me quote you in saying that most men in this House who have seats that we are talking about, most of them are more corrupt than women - [HON. MEMBERS: Inaudible interjections.] - They are so corrupt, Mr. Speaker, when you look at them, even looking at the Constituency Development Fund (CDF) and other issues, you will discover that women use the CDF properly, but men are not straight. Mr. Speaker, I am saying that in these forthcoming reforms, it is high time we aligned the Constitution with these electoral reforms. This will be our national pride, knowing that Zimbabwe is following the
Constitution. I am saying to the Minister of Justice, Legal and Parliamentary Affairs who is in this House and is listening, why are we being given small pieces? Why not extend 60 seats for the rest of our lives until the next generation and another generation then we can also contest in the rest of the seats. Mr. Speaker Sir that is affirmative action.
Mr. Speaker, my desire is that in ZANU PF, MDC and other political parties women should not be given a smaller portion, a portion that expires. Right now Mr. Speaker, as an individual I have heard people saying that the PR people are Barcossi. Mr. Speaker, I want to work.
Everyone needs to work. What brings us down as women is that we are given as charity cases, as second class citizens. We are the women of Zimbabwe. We gave birth to men so it is our right that we be given enough resources.
As I sit down, Hon. Minister of Justice, Legal and Parliamentary Affairs, please take this word to the Cabinet that Zimbabwean women are saying that enough is enough. We no longer want charity cases. We were ill treated in 2010 when people were working on the Constitution. We were just told that we were going to be given this small portion. We thought as women, it was good but towards the end it was transpiring in all political parties that it was not good. Mr. Speaker, have you noticed that in political parties, in the first parts, there are no arguments but in proportional representation, you will discover that women compete – in ZANU PF there are some who will be interested and it is the same in
MDC also. It is high time Mr. Speaker that we were given 50/50 in the 210 seats, there must be 105 seats for women and 105 for men and women who are interested.
Mr. Speaker Sir let me address the youths I am running a mentorship exercise because I know that out of 105, we will give some to our young girls because we are growing old and Parliament cannot be for old people. We need young girls who will bring wisdom to the House. As I sit down, Minister of Justice, Legal and Parliamentary Affairs, may you take this word to the Cabinet that concerning reforms, we expect 50/50 in the Constitution. I thank you Mr. Speaker.
*HON. TOGAREPI: I would like to thank you Mr. Speaker and I would like to thank those who presented the report. This emanated from the ZESN issue. Let me start by saying that our Government has shown expertise and wisdom and that they know that there are people’s aspirations. This petition was submitted when Government was far ahead on addressing the needs of Zimbabwean people, particularly regarding electoral reforms.
Let me say that this august House should appreciate what the Government is doing because it is doing a good job. When people go for elections, as we compete during elections, there are some people who believe that when they lose elections they should just challenge the results by going to courts and doing such things but when they win, they do not say anything. I think that as we go for elections, these laws should also target people who want to tarnish the image of the country. When elections are held and when you lose, it means that you have lost and you must accept it.
I would also want to thank our Government which has been there since 1980. We have always held elections in due season given the opportunity. You will discover that Zimbabwe is one of the African countries which respect the need for women to be given positions as MPs and Ministers. We are a Government which is doing a good job particularly concerning the issue of gender balance.
In doing that good job since 1980, as we work on electoral reforms that were petitioned by ZESN, let us not just be like some people who believe that our election process should be coming from other people. It is good to copy what other countries are doing but we do not want people who just focus on what they believe such that when they bring that into the august House, if that thing is alien to Africa, they look at people who sponsor and fund, just like the ZESN petition, I would like to point out that ZESN is a Zimbabwean organisation. Advice that comes from them should not be focused at regime change.
The other issue that I heard is that people who are old cannot vote on their own. Everyone who is a Zimbabwean has a right to vote. So, I must be able to choose if I want someone to vote for me because some of the things that we talk about here should have evidence like the V 11because we remember what happened when the V 11 could not be produced.
Let me observe and appreciate the good work which is evident in that young people and women are given opportunities to get into Parliament. For someone to walk from this place to Chitungwiza, you take a step at a time, just like taking women and giving them positions through proportional representation. This is an opportunity to women so that they are also part of this august House. Even young people are also being given such opportunities. This means that even in future, as legislators here in Parliament, we should continue urging different political parties that this should be done. We need to appreciate that we have a good Government which respects the aspirations of the people of
Let me conclude by saying that women, yes and I have noticed that there are young people in this august House. We need to appreciate and honour that which has been given to us that even as we go to the next election, women should be found in proportional representation. I have no problem Mr. Speaker Sir that women continue in proportional representation but as legislators, we are going to be working on the promulgation of such laws.
If there is need for gender equality or 50/50 in Parliament, if there is such equality, why is it that there are only a few women who are winning seats? If there is no equality, we need to look at these issues and have proportional representation. If we do not look at these issues and Hon. Members fail to help women, they will continue being left behind. Women should educate young girls, that after being given opportunities they must also mentor and teach others. I thank you. *HON. KWARAMBA: Thank you very much Mr. Speaker Sir for
giving me the opportunity to debate. I would like to talk about the presidential elections–[AN HON. MEMBER: In Malawi]-. We are tired of hearing people saying that the elections were rigged.
THE TEMPORARY SPEAKER: Who said Malawi? Can you withdraw that Hon. Member? This is not Malawi.
HON. C. MOYO: I withdraw the statement that the opposition has won in Malawi.
THE TEMPORARY SPEAKER: Do not try and play games. You mentioned that just like in Malawi. This is what you are supposed to withdraw Hon. Member.
HON. C. MOYO: I withdraw.
*HON. KWARAMBA: I would like to speak about presidential elections. We are tired of hearing people complaining that the elections were rigged every time there is an election and this results in a lot of confusion. I would say that we need to adopt the South African model which allows elected Members of Parliament to vote for the President of their choice –[HON MEMBERS: Hear, hear.] – so that there will not be any noise and any allegations of rigging. I am suggesting that we must vote for our Member of Parliament and the party which will have the majority of MPs would have won. We do not have problems with councillors and Members of Parliament and I suggest that when the reforms are done this should happen.
As the Chairperson of the Women’s Caucus, I would like to appreciate the fact that Government facilitated the addition of more women in Parliament by 34%. We have been trained on how to raise motions and ask questions and effectively contribute in Parliament. We appreciate that because if it was not for that women would be fewer than they are in Parliament. If you look at the results of first-past-the-post, there were 28 women with constituencies but now that we have been taught, women should win in order to have constituencies. People talk about the cliché “bacossi,” we do not want to be labeled as such. When the PR system was introduced, it did not educate women on how they should discharge their duties.
When you go to a constituency of an elected Member without his knowledge, you are accused of wanting to grab his constituency. We want these reforms to recognise our existence and give us more power. Sections 17, 56 and 80 in the Constitution talk about gender balance and as women, we respect men but give us also the opportunity to demonstrate that we can do it. We have a female Minister of Defence Hon Muchinguri-Kashiri and Hon Sen. Mutsvangwa who is the Minister of Information; they are doing a good job. I am saying that women can also do a good job. We need more women to participate. As women, we must shun this idea of wanting to be given everything on a silver platter.
Let us work hard in order to prove that we can do it too. I thank you. +HON. MAHLANGU: Thank you Mr. Speaker Sir. I would like diaspora votes to appear in these reforms because we have our children in different places. We would like them to come and vote and elect the person they want. On the same note, pertaining to issues that we copy from other countries as we heard from previous speaker, during the same time we go for elections we want counting of votes to be done there and then so that no one will come out saying my vote has been stolen.
As women, we encourage each other to take up opportunities of getting into PR if that opportunity arises. Right now, we have women who are crying just because they want CDF money. They have not been allocated that money because they do not have constituencies. How are women going to develop when they do not have money like that which is given to those Members with constituencies? The male counterparts who are given that money will be developing and doing wonders when their counterparts who are women do not have that opportunity.
We want the 50/50 representation so that we get places that are for women. We want certain areas to be allocated to women whereby we say we have a certain constituency which is supposed to be represented by an MDC woman, a ZANU PF woman or an Independent woman – not to get to a point whereby you say I failed just because I am woman. This will help us not get to that point whereby we realise that we have so many women who are being abused. We sometimes get to a point whereby we are insulted when we get to such places like this august
House just because we were chosen through the PR system. I thank you. HON. TOFFA: Thank you Mr. Speaker Sir. I stand to add to this debate and I would like to thank the Committee for the report. It was quite a good report but in it being good, I would like to add a few areas that I feel have been spoken to by other female Members of
Parliament. For example, our Constitution clearly states 50/50 and you find in most Commissions you have 50/50. I know in the Standing Rules and Orders the Chair makes sure that we have got 50/50.
When you look at parliamentary elections, you have 35% of women, in local government we have got 16%. So, if we make sure that women got 50% , this is what constitutional. Also in the public hearings that have been done by the Gender Committee, women have clearly stated that they what the 50:50. We should not, as women be given piecemeal and it should not be seen as a favour. It is our right as women to get the 50:50. So, as much as we initially got the women’s quota, where we have got 60 seats in the country; it was a stepping
stone towards realising the 50:50 in allocation.
Secondly, Mr. Speaker Sir, I would like to add a few points on the diaspora vote. It is very important that we make sure we get the diaspora vote. Why do I say so Mr. Speaker Sir? I am sure we have seen as a Government and as a people of Zimbabwe, in the current situation that we are in the Covid-19. We have had so many donations coming in from the diaspora. They have been helping us. Why are we prepared to take the donations and yet we do not want them to vote? We want them to invest in the country. So if we want the diaspora to invest in the country, let them also have the decision of who to vote for and who is to run the country. That is what I would like to air. Thank you
Mr. Speaker Sir.
HON. TSUNGA: Thank you very much Mr. Speaker Sir. I also wish to contribute a few issues on the report presented. Mr. Speaker Sir, it is unfortunate that the outcome of our elections have always been disputed each time the results are announced. The reasons have been very simple that the elections were not credible, transparent, free and fair. Those are the key terms that our elections have failed to meet those dimensions.
So, Mr. Speaker Sir, one item that is very key to the outcome of elections is the process of delimitation because it has an effect on the distribution of the vote nationally. Our constituencies Mr. Speaker Sir are of varying sizes in terms of geographical spread and also in terms of number of voters. So, it is important that as we look at reforms, we must be also addressing the issue of delimitation in terms of sizes regarding the geography and also the demographics that is the numbers that are going to be voting.
In that light Mr. Speaker Sir, I would argue for delimitation to take place after the national census. There is a thinking by some that our delimitation should happen before the national census, before we have figures in terms of how our population is spread across the country. So, Mr. Speaker Sir, it is important that all delimitation should happen after the national census has been carried out.
Mr. Speaker Sir, dispute resolution after elections is also key and I think we must have universally acceptable system of dispute resolution after elections. As we speak Mr. Speaker Sir, there are a number of electoral petitions in the past that up to this day have not been addressed. So, it is important that as we look at electoral reforms, the aspect of dispute resolution should also be addressed so that there is prompt timeous resolution of disputes regarding electoral outcomes.
Mr. Speaker Sir, we all understand that in the current Parliament, there are some MPs who are in Parliament whose presence here continues to be contested because certain things have not happened in terms of resolving electoral disputes. Mr. Speaker Sir, as we discuss, we also noticed that in this very august House, there are issues relating to recall of MPs. Whereas at election the Members of Parliament who were duly elected and who took oath were representing certain political parties and institutions, there is need to also look at those dimensions so that we refine, we must be able to refine ….
THE TEMPORARY SPEAKER: Order! Order! You are out of order
*HON. TOGAREPI: On a point of order Mr. Speaker. Hon.
Speaker, Members should respect the Chair’s ruling.
HON. TSUNGA: Thank you very Hon. Speaker. I appreciate what the Hon. Chief Whip is talking about. This was only trying to exemplify a problem that we are experiencing today, that we must be able to address going forward because if we do not give examples, we lose sight of what we are trying to …
THE TEMPORARY SPEAKER: Order, order Hon. Tsunga, I have made a ruling. There is no need for you to continue talking about
HON. TSUNGA: Thank you Hon. Speaker and I hear you well. Having said that, it is important that as a country, we follow to the letter and spirit of the SADC guidelines. We want to follow the SADC guidelines on the conduct of free, fair, credible elections so that we are able to meet the minimum requirements of such elections. We want, at the end of it all Mr. Speaker Sir, that the taste of credibility, transparency, freeness and fairness of elections is passed and that the outcome of the election is not disputed where the loser freely, willingly congratulates the winner and they are able to shake hands. If we can get to that by simply adhering to the generally agreed guidelines on free, fair, transparency and credible elections, then as a country I think our democracy will be at another level.
+HON. MABOYI: I would like to add on to what has been highlighted by my colleagues who have aired out their voices regarding women representation. As women, we feel left out by men. We ask you to include us because even when we went to war, we worked with you. We did not choose to say women should be trained this way in a way that is different from how men were trained. We trained the same way with you. Therefore, we want to get the same enjoyment with you as men. Even with regards to knowledge, we may not be well educated or informed but we ask you to help us by giving us that critical knowledge to continue to lead.
If we are included as women, you will realise that corruption will be less. For you to be in here as men and occupy more seats, it is all because of us women who gave birth to you and we will want you to understand that we respect you, love and want you to also give us a fraction and make sure that we have a part that we play in Parliament. In the few seats that we have been given, you realise that women are doing well. In everything that is being done by women, there is progress. In a Ministry that is being headed by a woman, there is progress but look at most of those that are being headed by men; things are not done in the appropriatly way. As men, we ask you to give women additional percentage in representation so that Zimbabwe progresses.
We know how to work and therefore, we want you to include us and not leave us behind. That 60 is not enough. We want you to increase and make sure that it is 50( but we know that you are not going to allow us to get to that level. One thing that I assure you is that if you give us that 50% representation, there will be less corruption . I ask you to look into this issue but I am not sure if the Minister is here to take note of this but we really ask you to make sure that you involve women and give us more seats. If you can give more seats, there will be progress in this country of ours. We want you to look into this issue and help us as women.
*HON. MUTAMBISI: I would like to add my voice on the issue regarding the ZESN petition. Let me just mention two issues concerning electoral reforms. The Diaspora vote, I do not agree with it because I believe that as a nation, we are not ready for that because we are using polling station based elections. For us to set up polling stations in different countries, I do not believe it is feasible.
Secondly, the ground is not level because our country is under sanctions. Some of our people cannot go and campaign in other countries freely because of sanctions. So when such elections are held, obviously there will be contentions because we do not know how many people are in those countries. I am saying that as a country we are not ready for the Diaspora vote. If such people are interested in voting, they should come back home and vote.
Regarding the 50( representation, yes we accept that we be given the 60 seats. However, apart from the 60 seats, it is important that we have the 105 seats.
HON. PHULU: I just want to summaries the debate that has been quite vigourous by Members on this very important report. Madam Speaker, I would like to support that the House notes this very important report which was eloquently put forward by the Chairperson of the
Justice Committee of which I am a member.
Madam Speaker, the report I think is important in that it also had attached to it a model law. This model law, we have not had an opportunity to scrutinise it but from the summary that we got from the Chairperson, we think it is a document that is worthwhile and we would like to urge the Minister to take it into account as they bring forward a suggestion in terms of the Bill. One of the recommendations by the Committee was that a new law should come forward, which seeks to review that gap.
Certain gaps have been identified and those are the gaps which members are speaking to. It is quite amazing that when it comes to this issue, particularly the female Members of Parliament are all speaking with one purpose and they are speaking really to issues that are talking to building the nation. They are talking across political party lines. We the men are the ones who tend to speak in a way that widens the party lines. If you analyse the debate, we would like to really commend them for rising above that kind of thing. In fact, it may be quite telling that if you had more women in this House, perhaps we would rise above the issues of partisanship more and more because women are really speaking to the real issues that are in the report.
Madam Speaker, I would like to simply emphasise two things. The issue is that issues of elections are very important. Our future and our national vision as Zimbabwe are hinged on how we conduct elections and the report has been quite adept in pointing out some of those issues. For example, we have issues to do with people living with disabilities. Those are quite clear issues that we need to fix so that we ensure that all of our population in Zimbabwe is participating equally in elections. We have issues to do with participation of youth. We need to ensure that all sectors in our country are able to freely participate and be able to take up any important positions in the country. These are some of the gaps that the report has been able to identify.
There are issues to do with the election itself, Madam Speaker.
We need to start to treat it as a cycle. This was noted again in the report. We need to move away from an election as an event. We need to bring our legislation to accept that there are pre-election issues. So our Electoral Act should be able to deal with the pre-electoral steps and we should still be able to measure those steps to ensure they equate with a free and fair election. We need to steal the event itself.
When elections happens, we need men and women of Zimbabwe to act with decorum and shy away from issues of violence, vote buying, cheating, gender imbalance, disparaging the women and insults. We need to be able to treat our opponents with respect. This is how the world will measure us and this is how after an election we can have the credibility that is due to us as a nation. We can have the trust that other people can repose in us. These are the things that spill over to our economy. Certainly, I hear the House to be unanimous in saying that we must accept this report. Once this report is put forward, we must ensure that something happens. It must not simply be one of those reports that is tabled and that is the end. We must ensure that all of us in unison as members – I know we are not in agreement on a number of issues, but certainly we must be in unison in terms of pushing and ensuring that these reforms are done - in terms of ensuring that the Minister takes an approach which is consultative.
I will conclude by summarizing that we need to build an inclusive nation – let us fight as different sides of the House about other issues. Let us not fight about issues of elections for three years. Three years have gone by with us debating issues of elections. The people of Nkulumane and I long for a Zimbabwe where after elections, those who have been elected to run with issues come to the podium and run with those issues. There are many other issues that we need to cover and they certainly go back to how we are elected. We would like to move and say to the Chairperson of the Committee that we must have a review of how this report has gone down the line and follow up with the Minister of Justice to ensure that all these issues that people and MPs have been raising – even issues that speak to gender equality, proportional representation; we know that that Amendment Number 2 is coming – again, we will debate these issues but certainly we would like to say that
Members of the House have treated this issue of elections with respect.
It is amazing to see how many members have come forward to passionately debate this report. I would like to underline that this is an important report and that we should carry it forward. I would like to thank you Hon. Speaker, the Chairperson and Hon. Members of Parliament for debating vigorously on issues of this report and all of you for supporting that certainly the issue of reforms that has been alluded to should be carried forward.
HON. TOGAREPI: I move that the debate do now adjourn.
HON. MHONA: I second
Motion put and agreed to.
Debate to resume: Tuesday, 7th July, 2020.
BUSINESS OF THE HOUSE
HON. TOGAREPI: I move that the rest of the Orders be stood over until Order of the Day, Number 42 has been disposed of.
HON. MHONA: I second
Motion put and agreed to.
REPORT OF THE PORTFOLIO COMMITTEE ON ENVIRONMENT
AND TOURISM ON WETLAND MANAGEMENT
Forty Second Order read: Adjourned debate on motion on the Report of the Portfolio Committee on Environment and Tourism on wetland management.
Question again proposed.
HON. CHINANZVAVANA: When this debate was adjourned, we had already thanked the Hon. Minister of Environment, Climate, Tourism and Hospitality Management for the timeous response that he brought to this House in the form of a Ministerial Statement. Having done that Madam Speaker, may I also thank all the Hon. Members of this House who took their time to debate on the report on the Portfolio Committee on Environment and Tourism on wetland management.
I now move that this House adopts the motion that this House takes note of the Report of the Portfolio Committee on Environment and
Tourism on Wetland Management.
Motion put and agreed to.
On the motion of HON. TOGAREPI, seconded by HON. TOFFA, the House adjourned at Thirteen Minutes past Five o’clock
p.m. until Tuesday, 7th July, 2020.