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SENATE HANSARD - 11 JULY 2012 VOL. 21 NO 38

PARLIAMENT OF ZIMBABWE

Tuesday, 11th July, 2012.

The Senate met at Half-past Two O'clock p.m.

 

PRAYERS

( MADAM PRESIDENT in the Chair)

ANNOUNCEMENTS BY MADAM PRESIDENT

ERROR ON THE ORDER PAPER

MADAM PRESIDENT: I have to draw the attention of the Senate to a typographical error on the Order Paper, where the Order of the Day Number 18, for today should read - Adjourned debate on motion on the Delegation to the Second Conference of Women Parliamentarians in Africa and the Arab World.

SWITCHING OFF OF CELLPHONES

MADAM PRESIDENT: May I kindly request hon. senators to switch off their cell phones or put them on silence before business commences.

MOTION

BUSINESS OF THE SENATE

THE GOVERNOR FOR MATABELELAND NORTH: I move that Orders of the Day, Numbers 1 to 17 be stood over until the rest of the Orders of the Day, have been disposed of.

Motion put and agreed to.

MOTION

REPORT ON THE DELEGATION TO THE SECOND CONFERENCE OF WOMEN PARLIAMENTARIANS IN AFRICA AND THE ARAB WORLD.

Eighteenth Order read: Adjourned debate on motion on the Report of the Delegation to the Second Conference of Women Parliamentarians in Africa and the Arab World.

Question again proposed.

THE GOVERNOR FOR MATABELELAND NORTH: I move that the debate do now adjourn.

Motion and agreed to.

Debate to resume: Thursday, 12th July, 2012.

MOTION

PLIGHT OF TEACHERS

Nineteenth Order read: Adjourned debate on motion on the plight of Teachers.

Question again proposed.

THE GOVERNOR FOR MATABELELAND NORTH: I move that the debate do now adjourn.

Motion put and agreed to.

Debate to resume: Thursday, 12th July, 2012.

MOTION

GHOST WORKERS WITHIN THE PUBLIC SERVICE

SENATOR HLALO: Madam President, I rise before this august Senate to contribute to the present motion on the ghost workers in the Public Service. I note that this matter has been outstanding since the formation of the Inclusive Government in 2009, and to date, no movement has been made in this regard. It remains an unresolved matter in spite of the obvious and common cause impact it has on our economy. The time has come for this situation to be put to rest once and for all through concerted effort by all stakeholders to ensure that our Public Service is correctly sized and only those hard working and patriotic civil servants are rewarded for their contribution to Zimbabwe.

Madam President, the state of our economy is common cause. We are battling as a country to recover from a decade long recession in which our economy almost collapsed and the effects of the situation are stark for us all to see. One of the most serious effects of this crisis has been the Government's failure to adequately remunerate civil servants and this has affected the quality of the service that the citizens have been getting. The sector has been dogged by unrest. Our workers are unsettled because we are not able to pay them what they are worth.

The critical question that every Zimbabwean is asking is why are we worsening our already precarious situation by allowing for loopholes and leakages such as those that ghost workers present? What is the justification for paying ghost workers when we are failing to make those actually doing the work happy? What is this cancer that has pervaded our society that makes it normal for non-existent workers to be paid from our already strained resources?

Why as a nation have we chosen to be reckless and wasteful in a time of difficulty? Why have we chosen profligacy at the expense of prudence? And, the most important question of all is: Who exactly is benefitting from this clearly criminal activity?

These are crucial questions which this House must help to answer. The nation today looks to us to think beyond our political parties, beyond our narrow allegiances, and instead focus on the collective interest of Zimbabwe. We are called upon by Zimbabweans who have vested so much trust and responsibility in us to bring finality and closure to this matter and it would be a disgrace and embarrassment for this august House to pander to the whims of sectarian thinking at the expense of the collective good.

Madam President, there is dispute as to the extent of the problem but it is instructive that Ernst and Young of India have put this figure at 70 000. Typically this figure has been met by denials and counter accusations but no counter proposals. Surely, 70 000 ghost workers in a population of 13 million people is unacceptable by whatever standard. This borders on sabotage of the highest order and we must act to stamp out this deliberate destruction of the economy and all our valiant efforts to revive the economy.

Presently the Ministry of Finance is struggling to create fiscal space for initiatives to finance important economic activities due to the unsustainable civil service wage bill which stands at 70% of the national budget. It should be common sense that if we pay only those that deserve a salary and cut off these nonexistent workers we would do our economy a great good.

Madam President, the issue with the ghost workers raises further questions which must be responded to for the benefit of Zimbabweans today and future generations. That is a basic tenet of democracy. Citizens have a right to demand answers because all of us serve in these positions at the pleasure of the people of Zimbabwe. It is their money that has been used to pay these ghost workers and it is their economy that has suffered partly due to such heinous decisions. They want answers and solutions and they want these today.

They will not understand why man and women like us who have been given such responsibilities to attend to the questions of the day shied away from that task and in fact presided over illegalities. They will not understand how we meet here week in and week out and fail to raise the flag on an injustice that threatens to derail attempts to resuscitate the economy and guarantee our people decent lives. We must give answers and give them now.

Madam President, I stand before this august Senate on behalf of the people of Zimbabwe to demand these answers. The people of Zimbabwe cannot all be here to raise these issues, but in this House they trust that they will have their voices echoed by their representatives. This House, Madam President must demand as a matter of urgency that an objective investigation be carried out to establish the following

- How many people are on our payroll that should not be there

- What have these nonexistent workers cost us over the years?

- Who has been benefitting from the existence of these ghost workers?

- What steps should be taken to bring to book those that have been sabotaging the nation through this despicable action?

I note Madam President, that not so long ago an audit of the Public Service was done but the results were disputed, making it difficult to take any action to address the problem. The exercise that I am proposing here must be above reproach and its findings should be conclusive.

In conclusion Madam President, it is saddening to note that it has been four years since the issues of ghost workers was raised and yet today very little has been done to address it. Any right thinking person out there should be wondering what we are worth as leaders if we ignore such important issues. If we do not view this as an urgent business then we are not worth much, if we allow the fiscus to continue bleeding due to shadowy elements drawing from our resources. Zimbabweans expect the Inclusive Government to move swiftly and bring to finality this issue and correctly. Madam President, I call on this House to make an urgent resolution on this matter and bring finality to this. I thank you.

*SENATOR MLOTSHWA: Thank you Madam President. I would want to add my voice to this motion. These people who are not contributing anything to the Government, it appears that people are questioning that did the Government approve the audit that was carried out by Ernst and Young. In fact, I do not think an audit can be carried out in the country without Cabinet's approval. When this audit was carried out, some of the people were dead, some had left the country. The aim was to come up with a budget especially when it comes to paying workers. If that is the case then, after the audit had been carried out, why is it that people have abandoned the real reason why the audit was done in the first place?

What it shows is that when something which is not supposed to be known is made known, then you find that there is tag of war with people not pulling in the same direction. These 70 000 people who are earning money and not doing anything for the country of Zimbabwe are making it difficult for those who are working and not getting anything. This money that is being paid to the 70 000 people, if we take the example that was given by the hon. Senator, you will find that it is money that can be given to those who are genuinely working and make a difference to their salaries.

These ghost workers or the people who are earning salaries but not working, we see them in the streets where we live, they are there and they get paid. When they get paid, they make it so obvious that they are benefiting for doing nothing. Madam President, if the Government of Zimbabwe wants to continue paying those people who were employed in May 2008, the Government should create jobs that will help the country instead of them being paid for doing nothing. There are people who are genuinely working and they are getting very little and this is demoralising them.

Madam President, if you look at our neighboring countries, countries like South Africa, if people tell their Government that they are not happy with something, the Government listens because they have no other people besides those people. Our salaries here in Zimbabwe are too low. If you look at what we have in our motion, we have a motion that says teachers are earning too little, it is not just teachers but everyone including Members of Parliament. They also earn according to the Public Service salary scales and their salaries are too little. One time when I was on Committee business, it was on social affairs, I was with a certain lady from Kenya and we were talking about our salaries. At that time we were earning something about $300 and those in Kenya were getting $13 000. We were talking about responsibilities and duties that are carried out by a Member of Parliament. They were laughing about it and they were saying, since we earn so little, it means that we are always debating about our problems. People expect us to assist them. They were asking where do we get things to contribute.

Civil servants are always worried about money and this is money that is supposed to be going to them since they earn so little. When you look at some sectors of the civil service, you will realise that the money that they are earning is too little and it is not enough to sustain them. Therefore they end up engaging in some things that are not right. I always drive along Bulawayo road and if you look at the number of road blocks that are there, the number of kombis and buses, those belong to people who also want black empowerment and all is being caused by these people who are supposed to be looking out at traffic on the road but because they are not getting much, they end up engaging acting like toll gates, making people pay to pass, for example, kombis and buses. Madam President, how exactly is the issue of ghost workers supposed to be treated? I am told that the Auditor General is supposed to table the names to the President and Cabinet that there are people who are ghost workers. The President then orders that these people be removed from the payroll and the money is supposed to go to genuine workers. Now the question is; why is this is not happening? Why is it that nothing is being done in accordance with the correct procedures? It does not help and as people's representative, it is difficult at times for us because we get invited to different forums and people are just airing the same views that we are not improving enough. The police are also complaining that they are not getting enough and even at schools and hospitals. Madam President, it is my wish that the Government should do something because we have talked many a time about the same issue. May the Government please listen to the people and correct this because they are charged with the duty to serve the people of Zimbabwe.

As representatives of the people, we are supposed to talk about such things, it is our duty to exercise an oversight role on the Executive and people should benefit from our efforts. Treasury should also spell out how much they are prepared to dish out because it is obvious that Treasury is releasing money to people who are not doing anything to benefit the fiscus. With those few words Madam President, I thank you.

MADAM PRESIDENT: We also thank you hon. senator.

SENATOR MOHADI: Thank you Madam President. I rise to contribute on this motion. I think some of the things we have to take them seriously as we debate because I no more understand what we really mean by ghost workers, whether we mean the police or the teacher s because I am left in between. I understand an audit has been done and if ever that audit found any mishaps or found those who were ghost workers, why should they be there at work if ever they are there? I really do not understand, maybe I need some teachers to teach me or to educate me on the issue of these ghost workers. If ever they are there, let us not only look on the side of civil servants, but let us look at it widely considering even parastatals as well because where I have ever heard about the ghost workers is here in Harare where there are people who are not working and who are earning a salary. I have heard about that one and nobody is talking about it here.

I do not know whether we should specifically talk about teachers, the police or whosoever is a ghost worker because to me, the policemen, the teachers, the community development worker who are being talked about, to me, it is working because she or he has to go and work in the community of his/hers. They might be staying with us in our constituencies because the issue here rests on people who are working in the communities as community development workers. Those are the people who are being talked about and to me they are at work. I do not know how the word ghost comes about, but I have heard about the ghost workers here in Harare, in the Council. The Council which has hired temporary people and there are some people who have been working in this Council for donkey years and they are put aside and they are getting their salaries.

If we are really sincere enough, if you want to talk about the ghost workers, we must come up with tangible examples of ghost workers. This song has been sung for quite a long time and by now we should know where these ghost workers are because I do not think they work at night. They work during the day and we are always with them and then it is high time we should say it out because this Government is ours. All of us and we have to defend this Government with whatever information we have.

I just thought Mr. President I should raise my voice and also talk about these ghost workers. I have not seen them anywhere but I have heard about them here in town, thank you Madam President.

SENATOR KOMICHI: Thank you Mr. President. I would like to contribute to the debate and I would like to concur with most of the speakers including the last speaker on the matter of the ghost workers. Really the issue of ghost workers must be taken seriously as one speaker said, but it is very important for us to appreciate what ghost workers are used for. They are various functions which are found to be the use of ghost workers in Government as well as in organisation at large. One of the functions of ghost workers is merely deliberate corruption, managers can actual have workers that are not there in order for them to get that money and convert that money to their personal use.

The country has got some many examples of managers that have been found through auditing and have been fired by their companies for getting money of people that are not there, especially when people are employed as contractors at work, or casual workers. This ghost worker principal is found very rampant in that. Some other incidents are due to system inefficiency. If the management is inefficient as a system they will fail to account or fail to put a system that controls the Human Resources Management of their workers that is one of the reasons. There is also when we now look critically towards Government like in our nature where the political influence can be used to deliberately employ people under certain ministries and these people are said to be doing community work for the Government yet they are doing community work as a disguise they are actually working for a political party.

The 2008 casual workers that were employed were political for a purpose of enhancing one party's interest when we were going for the run off, so the people have been identified and they are in the community. One speaker has actually said that, these people are seen drinking beer from 8am to 8pm doing nothing at all and at the month end they go and get a salary and spend that money on drinking again, boasting all over saying that we are being paid for doing nothing. This is true and this is happening so we are saying the Government must honour and respect itself by doing something good. If it was done for the purpose of politics that politics is over now because we are now in the Inclusive Government and there is no need to hire certain people to do sinister work against other political parties.

In the Government of National Unity these people have been identified so they must be ashamed of this practice. If it was done let us quietly remove them from our records because they are a disgrace to us. Do not forget that the cost of production of any work, labour force has got a bearing on it and is one of the most troubling factors of the cost of production because you have got to pay them and you then at least find comfort if you pay someone who contributes to the process and production. When you pay someone who is not contributing any productivity it pains and that organisations suffers and you will never be profitable, so 70 thousand ghost workers are not a joke if we are to take the figures from one of our honorable which said US$17.5 million per month.

I can assure you if this money has to be directed to the outcry of the civil servants, Members of Parliament and teachers we can have a lot of benefit out of this. Let us be courageous enough and remove these people. These people were paid for committing heinous crimes but look at it the Parliament yesterday passed a Human Rights Bill. The Government must reciprocate if the Government had the audacity to pass the Bill of Human Rights which was responding to the crimes that were committed in 2008, they must make sure that they remove these people from the salary schedules.

We can also find out that if these people are removed and we save US$17.5m more projects can be done and our youth and women can benefit, they can get this money and do projects or direct this money to good use. We want the productivity of this country to then at least benefit from the labour that we have in Government. So I appeal very strongly to the members in this House that ghost workers must be condemned and we must urge the ministry that have ghost workers, the Ministry of Youth and Women which are our major culprits amongst our ministries, which I think some of the ministers are here, they are going to tell their friends what we have spoken today that they must act professionally. I thank you very much.

*SENATOR KABAYANJIRI: Mr. President Sir, I rise to make my contribution on this motion raised by Senator Makore, whereby we are discussing the issue of ghost workers especially in Government. Let me start by thanking the speaker who has spoken before me who has knowledge on the issue of ghost workers. The senator was reading and the seconder of the motion was also reading and this shows that the two hon. senators researched or were assisted in doing research. We noticed that this debate is really essential in the development of the country especially when we are talking of ghost workers.

When we are talking about the numbers which is 75 thousand this is very high and when I heard about these ghost workers I went personally to my rural constituency and tried to investigate so that I could get one of those people who are called ghost workers in such areas which are always referred to. One of the areas that I visited, we find that especially to some of us who have been in the rural areas for quite some time, you will find that the number of teachers in any school is known because when the teacher transfers, that is public knowledge. One can tell that there are so many teachers in this particular school. As a result, I find that this debate is not bringing out clearly; there is no empirical evidence that we have ghost workers. Therefore I plead with hon. members that when we are debating this issue, let us make thorough research so that we talk about the things which we know and there is real empirical evidence that there are people who can be referred to as ghost workers.

My feeling is that this debate is a politically motivated debate and therefore I would also want to know whether these people who made the contribution onto this motion, had really made a thorough research. Do they have empirical evidence or they are people who just want to tarnish the image of the country? Therefore when we look at the 70,000 ghost workers who are talked about, let us divide these existing constituencies and we will have average ghost workers in the constituencies. As Members of Parliament, we will go to these constituencies and hunt down those constituencies. Therefore we plead with the Government to make thorough research, but it may not do that if all this is based on assumptions and no proper evidence.

You also find that when the members who contributed to this debate talking about these ghost workers, these people caucus and appoint eloquent speakers to come and talk about the ghost workers. Yet, when you look at it on the ground, there is no evidence of these ghost workers. I plead with fellow legislators, we are here, let us give correct information on the Government so that when laws are passed, they assist in the development of the country. I thank you. SENATOR MANDABA: I also want to contribute to this motion. I have been trying to set in my mind that the word 'ghost' puts us all off. If it is a ghost, then it is a none existent person. Are we talking about people who have died and are still receiving a salary? If so, death certificates are issued. I am sure in every ministry when someone dies, SSB is notified. I have heard that we are talking about ghost workers that they are people who are receiving a salary and not working. Having been a civil servant myself, I remember that we used to write appraisal forms for workers, has this died? Are people not being appraised? Are they just receiving money? How are the promotions being held if we have got 70,000 ghost workers? This is a large number and it should be very visible. It should not be the people that we should be looking for. I think it will be so glaring if we have 70,000 people who are on a salary.

If we look at the ministries that are receiving the money, I do not know under which ministry are these people receiving this large amount of $17 million from. This is because the ministries that are said to be using ghost workers like Community Development workers, the budget that goes to that ministry is so little. Yet, there is so much to be done in the community. We need people to be working in the community not even for politics but for development. We are talking about development in this country. There should be people who are at grassroots level, who will be explaining to the grassroots what the Government is talking about and what indigenisation is all about or whatever policies. We have heard the scourge of HIV/AIDS; we have complained here that we have people like home based care givers who are not getting a salary. Why can we not give these ghost workers work in the community?

I think if it is a question of them getting a salary and not doing anything, then we should be sitting down and prescribing what work they should be doing. How were they employed and what were their conditions of service? What work were they supposed to be doing? We can not just have 70 000 people roaming around drinking beer. Surely those who are working will not find any beer because those will be drinking it from morning till evening. So those who come back from work will find all the beer consumed and will have nothing to consume. The ghost workers will have finished everything. If it is about management, having employed casual workers and after employing casual workers and putting them aside and getting their salaries, then we should be dealing with fewer people less than 70 000. We should not be dealing with management per se or people who are in supervisory or management authorities to deal with the issue of how many people they have.

The salaries that are being received are from SSB and so we should not be crying here. There is already a regulation where people are employed and are paid according to the conditions of service. So the ministry should be looking at who are responsible for these people. It is not difficult but for 70,000 people to remain as ghost workers and still exist on the payroll, it is unbelievable. I thank you.

+SENATOR S. NCUBE: I would also want to contribute to this debate. The problem that we have is the Inclusive Government that has created this. Before the Inclusive Government, we did not have this problem. The speaker who spoke earlier said when we talk about the issue of civil servants, it is not just teachers who are earning low salaries. When we look at the nature of their work, how much are they supposed to be getting? Should they be given $100.00 or should they be given what we pegged as the PDL? Since when have people been talking about teachers' salaries, because it is like we are playing the blame game? I remember when we were growing up; a teacher was a very important person. If we now want to politicise the issue of teachers, it is not proper. Before I talk about ghost workers, maybe I should define what a ghost worker is.

I think we are not using the term correctly. May be we should be saying these are people who are earning but not performing any work. I have a lot of evidence and I am prepared to stand anywhere. These are people who are getting paid for doing nothing. There is a school in my constituency. At one time I was talking to the headmaster in 2007 when we were still facing difficulties from 2007/8/9. I know a lot of teachers left but I was told that those teachers were still receiving a salary.

One speaker has already spoken and the speaker said, if someone has died, then the salary should cease but here we are being told that if someone has died he/she is still getting a salary and those people who have left work are still receiving a salary. The authorities however know that a school has a certain number of teachers and yet they continue receiving the salaries. I notice that this thing has been politicised very much. Let us look at the people that we are dealing with here in Zimbabwe, there are people who are very clever and there are people who are law abiding citizens.

People have been told that they should not politicise the issue of teachers. We are now suffering because we are now the leaders at the moment, because this is an issue that is talked about all the time and it is even on television. People are politicising the issue of teachers and now the President has even stated that teachers should be given a salary. Since when has the President stated that teachers should be given a salary? It now appears as if teachers are not being paid and yet the money is there. There are certain ways in which this matter should be handled. I used to work in the industry but I knew that you would lobby for a certain percentage as increment but at times you did not get that percentage that you wanted but a lesser percentage. This issue of money is being diverted, politicised and it is like it is something far much more important than teachers. We should not continue doing that.

A Minister as an individual can not grant an increment to teachers. Let us tell the teachers the truth and if there is no money in the country we should let them know that. Where does the Minister get the money to grant an increment to teachers? I know Cabinet sits and authority is granted for the money to be released. Let us not politicise this issue of teachers' salaries because we are talking about a lot of money. This is not a dollar and you will remember some time back that $100 was a lot of money and you would buy blankets with that. Now we are talking of seventy thousand ghost workers and these people are earning a salary and that money can make a difference to a teacher's salary. Let us not politicize this issue of salaries because now it appears as if there is a party that can perform even better but what used to happen before MDC was created? There are people who are politicising the issue and now you can see that people are now eating rice and they are having their three meals. There was a time when teachers were no longer working but selling tomatoes at the market. Let us not politicise this issue.

SENATOR MANDABA: On a point of order, the hon. senator should not be debating parties but stick to debating the motion.

SENATOR S. NCUBE: There is nothing wrong because we come from different political parties here. The Minister who is in the Public Service is the Minister for MDC there is nothing wrong in me talking about the MDC. I am not insulting anyone. That is why people out there think that things are not being handled properly because …..

THE DEPUTY PRESIDENT: Order, the motion does not indicate whether it is about MDC or ZANU PF but about increment for teachers so if you want to debate about MDC can you move a motion accordingly.

SENATOR S. NCUBE: Thank you Mr. President, I will withdraw the issue of parties. I was saying we have to look at it as leaders and we should tell people the truth and not mislead them. We are the leaders and people know what is happening. If we do not tell them the truth then they will not believe in us. We should be truthful about this issue of civil servants and if there is no money we should tell them that there is no money. We should not say that so and so is refusing to give you money. If the money is there then it should be released and given to the people.

I think with the few words that I have said I would like to support this motion. I thank you.

*SENATOR MTINGWENDE: Mr. President, I will start by thanking the mover of this motion. This is a very sensational issue and makes us think deeply on the troubles in our country. I have noticed that all the contributors to this motion were very emotional about this issue. Let me not repeat what has been said by the previous speakers especially on the definition of ghost workers. The problem which exists amongst us is that we do not know what is happening in different ministries, how the people are operating in those ministries and their conditions of service.

I remember one of the previous contributors talking about the Ministry of Youth where there are employees who were employed for a certain partisan purpose. Is it very clear to us as legislators that when each Ministry employs its workers, they are there to fulfill some certain obligations because if there is no purpose for employing people there is no need to recruit when there is no work to be done. Mr. President, I also want to say in the rural areas where I come from, we have people who are whiling up time discussing about our non existence in our constituencies as legislators because they say we are being paid for doing nothing and we are also given cars for nothing because we are not doing what they expect us to be doing. As far as they are concerned we are ghost workers and as a result they think we are just earning salaries for nothing. Therefore you will find that if these people are treated as ghost workers and we found that if this debate was going to be held in the villages you will find that the villagers will be saying the ghost workers are Members of Parliament because they don't know the nature of our job. I plead with the hon. senators, since we are elected as Members of the Senate it means that we are elder statesmen who make contributions and take them to constituencies and when we talk of ghost workers and if the audit was done as was stated by these people, why is it that the salaries are being paid out? The workers, the teachers go to the bank to collect money after collecting their pay slips. The question is who is collecting those pay slips? Who is handing over the pay slips to them since these persons do not exist?

As far as I know, in my conclusion I find that the people who moved this motion had not taken down all the necessary receipts on the ghost workers, within the ministries. When they are talking of ghost workers, it means their motion did not bring out the existence of ghost workers and the definition of who the ghost workers are because I found that in most of the contributions raised in this House, we are running in tandem of what is supposed to be the ghost worker and who really a ghost worker is, just as it has been stated by the people who have moved this motion. Thank you for giving me time to make my contribution.

SENATOR FEMAI: Mr. President Sir, I am not going to make a very long contribution, I will be very brief. With regards to the debate in this august Senate, we are the elder states persons in the country. We will be expected as elder states persons in the country to sift through the nation and make necessary researches and contribution so that we help the Government of National Unity in its progress but Mr. President Sir, my observation in this debate is that the hon. senator who moved this motion said he wanted to move the motion in his name and not on behalf of the party or on behalf of any organisation. But from listening to this debate, there are some of us who are programmed to say no to anything that has been made as contribution in this august Senate and then they forget that we have a Government of National Unity and they still say no. They are using blinkers and they are not aware of the changes that have taken place.

This is a Government of National Unity and when you look at the movers of this motion, this was aimed at the Government of the day as some of the people who have made contributions are just opposing for the sake of opposing with no justification whatsoever. When the motion was moved they talked about ghost workers and there is no party which was mentioned as ghost workers belong to. To my surprise we have people who seem to think that this allegation is aimed at a certain political party. Please let us not be hoodwinked and we have people who are so synchronised that they say the same thing over and over just like a gramophone. Now, I now challenge the Ministry which was responsible for auditing these ghost workers. The audit was not carried out by the party but it was done by a Government Ministry and therefore, I now call upon this Ministry to name these ghost workers and shame them.

SENATOR S. NCUBE: Thank you Mr. President, some other senators in this Senate who are calling about and encouraging some Members of this Senate to go and have medical examinations and have their brains cleaned by brain specialists or brain surgeons. Mr. President Sir, I just mentioned that this House is now looking like a children's play-house, like a crèche, I plead with senators to stop debating on party lines.

SENATOR FEMAI: Thank you Mr. President, I am pleading for protection because of the chaos in this House. My last contribution is that we want those ghost workers to be mentioned so that they are shamed and they that they are put in the papers and their names should also be mentioned so that who ever is responsible for these ghost workers is shamed as well.

THE GOVERNOR FOR MATABELELAND NORTH: I move that debate do now adjourn.

Motion put and agreed to.

Debate to resume: Thursday, 12th July, 2012.

MOTION

BUSINESS OF THE SENATE

THE GOVERNOR FOR MATABELELAND NORTH: I move that we revert back to Orders of the Day, Numbers 1 to 17.

Motion put and agreed to.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 61 OF 2012 - DEFENCE (CANTONMENT) - NOTICE 2012

Senate in Committee.

MR. MUSHONGA: In pursuit of its constitutional mandate as provided in for in section 40B of the Constitution of Zimbabwe, the Parliamentary Legal Committee met on 7 th of June 2012 at 1015 hours to consider all the Statutory Instruments that were gazetted during the months of April and May 2012. After deliberations, the Committee unanimously resolved to issue an adverse report in respect of the statutory instrument 61 of 2012 due to the following considerations:

Statutory Instrument 61 of 2012 was gazetted in terms of section 89 of the Defence Act [Chapter 11:02]. Section 89 of the Defence Act provides as follows:

Declaration of cantonment

The Minister may, by notice in the statutory instrument, declare any area or place to be a cantonment for the purpose of the Part: Provided that the powers conferred by this section shall not include the power to acquire, whether compulsorily or by agreement, any Communal Land or any interest in or right over Communal Land, otherwise than in accordance with the Communal Land Act [Chapter 20:04].

Effectively, this provision enables the Minister of Defence to declare cantonment areas by notice in statutory instrument. Using this provision, the Minister of Defence has declared an army boarding school in Kadoma as a cantonment area. The effect of the declaration is that members of the public who do not belong to classes of person who can access cantonment areas are prohibited from accessing a boarding school. The only persons who can access cantonment areas are provided for in section 90 of the Defence Act, which reads as follows:

Prohibition of entry into cantonments

(1) No person shall enter a cantonment except a person who is -

(a) A member of the Regular Force or of any other Military Forces; or

(b) The wife or child of a person referred to in paragraph (a) who is residing in the cantonment or any other member of his family if such other member resides in the cantonment; or

(c) A member of Reserve Force who enters a cantonment in the course of any service, duty or training under this Act; or

(d) Employed by the State or acting under the orders of the Minister and who enters a cantonment in the course of his duty; or

(e) Permanently residing within the cantonment at the time of the publication of the notice referred to in section eighty-nine; or

(f) A person or member of a class of persons authorised to enter the cantonment under sub-section (1) of section ninety-one

Section 90 (2) provided for penalties to be imposed on persons convicted of entering cantonment areas. The section reads as follows:

Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level 5 or to imprisonment for a period not exceeding six months or both such fine and such imprisonment.

The collective wisdom of the Committee is that imposing a maximum of six months jail term or an alternative level 5 fine to members of the public for merely entering the premises of a boarding schools, unduly interferes with freedom of movement as enshrined in section 22 (1) of the Constitution of Zimbabwe. The Committee is aware that under the current constitution in terms of section 22 (3)

(a) This right can be derogated from by a law that imposes restrictions on the grounds of interest of defence. In this regard, the Committee is of the view that it is neither in the interests of national defence nor any other permissible interest to restrict access to a boarding school. There is a real possibility that the conduct of members of the public merely enquiring about availability of vacancies for their children would be criminalised, prosecuted and jailed. That is why Madam Chair your Committee passed an adverse report. This is not a military installation, this is a boarding school for pupils and we move that this be adopted. Madam Chair, I move that we report progress and we seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL

COMMITTEE ON STATUTORY INSTRUMENT

NO. 55 OF 2012 - GWERU (INCORPORATED AREAS)

(RENT, SERVICE AND SUPPLEMENTARY CHARGES)

(AMENDMENT) BY-LAWS, 2012

Second Order read: Committee Stage: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 55 of 2012 - Gweru (Incorporated Areas) (Rent), Service and Supplementary Charges) (Amendment) By-Laws, 2012.

Senate in Committee.

MR. MUSHONGA: I propose that I will give a detailed explanation about why we dealt in the manner we did, Items 1 to 17 on the Order Paper but unfortunately we will have to go each one at a time. So, the initial explanation will be more detailed so that we all appreciate where we are coming from. So I will go through them but we then would have to demarcate one by one.

In pursuit of its constitutional mandate as provided for in Section 40 B of the Constitution of Zimbabwe, the Parliamentary Legal Committee met on the 7 th of June at 1230 hours to consider all Statutory Instruments that were gazette during the month of April and May 2012.

After deliberations, the Committee unanimously resolved that Adverse Reports be issued in respect of the following sections of the Statutory Instruments listed below. I am going to proffer a detailed explanation as what is it that we consider when we are passing these Adverse Reports.

The decision was made after consideration of the following factors. The entire list of Statutory Instruments that is 55 of 2012, 58, 62, 63, 66, 71, 73, 78, 90 and 93. I am jumping others because they were passed.

The entire list of Statutory Instruments cited above have a Penalty Creating Clause. They create penalties which do not comply with the due process of the law. I will explain what we mean by due process of the law. This is because the penalties imposed by the Statutory Instruments can be collected by municipal officials without following lawful procedure laid down in the Criminal Procedure and Evidence Act.

In terms of Section 271 A of the Criminal Procedure and Evidence Act as read with Section 141 and 356 of the Criminal Procedure and Evidence Act Chapter 9.07, a fine above level 3 that is $20 can only be imposed by a court of law after fully canvassing the essential elements of the offence. This procedure is meant to afford an accused person the right to the protection of the law which is envisaged in Section 18 of the Constitution of Zimbabwe. This is because an accused person cannot be convicted until a court of law has satisfied itself that the person is indeed pleading guilty. Therefore, the penalty section of these statutory instruments take away the protection of the law and that protection is created by the Criminal Procedure and Evidence Act. In so doing, they violate the right to the protection of the law given by Section 18 of our Constitution.

I am going to give a classical case to make an easy reference. It is permissible to impose and collect fines outside courts, it is allowed. Various by-laws authorise this practice and derive their authority from Section 141 as read with Section 356 of the Criminal Procedure and Evidence Act. This is what is termed the admission of guilt procedure which in practice takes the form of a written notice to appear in court that gives the alternative of admitting guilt and paying an assessed fine in lieu of appearance in court. If you arrive at a road block, they will say we want so much fine and they issue you with a ticket so that you sign on that ticket if you admit. If you do not want to pay, they will issue you with a ticket and advise you to appear in court on a particular date. That used to happen before the spot fines. You will be asked, do you admit that you were speeding? Yes. You were travelling at 60km in a 50km zone? Yes. Pay $10. If you pay your $10, you sign your admission of guilt form. The police officer will take all those tickets and the fines on Monday, this would have happened on Saturday. They would be taken on Mondays to the Magistrate court and the magistrate will go through each ticket and ascertain that the correct fine was assessed therefore, she/he will sign to approve. So, you have gone through the due process because a court official has gone through your ticket and has certified that your admission is correct.

This is what used to happen before we started the spot fines business, that is due process. If the magistrate sees that you have exceeded by 10km and you were fined $30 instead of $10, she will refuse to certify that and that ticket will come back and you are supposed to get your money. This is what we call the admission of guilt procedure. The process would go to a magistrate who will make an assessment of what the police officer has done on the road and approve or disapprove. Therefore, due process has been done.

The fine imposed must not exceed level 3 and if in the view of the prescribed officer, the appropriate fine should be higher than the level 3. Such person, even if admitting guilt, must be dealt with in the normal way. That is, if you are found to be speeding. The police will tell you this speed we cannot ticket you, you have to appear before a magistrate because it will be going beyond the $20. They will insist you have to come back and appear before the magistrate on such a date. I am dealing here with what we call admission of guilt. Even if you are admitting, you have to appear in court and be placed before a magistrate who will proceed by way of Section 271, which is plea procedure. Mr. Jones on Friday at 6pm, you were on the Kadoma road? Yes. You were driving above the speed limit, the speed limit was 60km and you were at 70km/hr? Yes. Do you mean your guilty plea is in accordance with the fact? Yes. I, accordingly find you guilt, you pay so much fine or I cancel your licence etc. That is what we call the plea procedure, but usually when we are dealing with Section 271, there is a fine provision in it.

A common example of fines imposed out of court where the law allows fines out of court, is when you do not have a ZBC licence or they issue you with a ticket or some other minor offences. Under this procedure, once the prescribed officer has accepted and receipted an assessed fine in lieu of the accused appearing in court, the papers are then transmitted to the magistrate within whose jurisdiction the offence was committed. The magistrate goes through the papers and satisfies himself or herself that indeed the conduct constitutes an offence and the offence deserves the kind of penalty which was imposed by the officer on the road.

The magistrate signs the papers and in that case an offender is regarded as duly convicted, not by the policeman on the road who collected the fine but by the assessing magistrate who is sitting in court. In terms of Section 271(2) of the Criminal Procedure and Evidence Act, a fine above level 3, that is $20 can only be imposed by a court of law after the Presiding Officer has canvassed the essential elements of the offence from the accused person and satisfied himself or herself that the accused has understood the said essential elements and is indeed pleading guilty with the full knowledge.

The procedure provided for in the Criminal Procedure and Evidence Act is meant to afford protection of the law to accused persons as no one is penalised without the involvement of the courts, that is Section 18, an independent tribunal. Even in those cases where an accused opts to pay an assessed fine in lieu of appearing in court, it is the court that has a final say on the matter as I said earlier on. The magistrate will assess the fine and the circumstances. He will certify or refuse to certify. The involvement of the judicial officer stems from Section 18(2) of the Constitution which provides that a person charged with a criminal offence shall be afforded a fair hearing before an independent and impartial court established by the law.

The magistrate, by assessing your ticket and certifying it or refusing, you are being afforded the protection of the law. It is a requirement of the rule of law that a judicial officer be involved in all cases of criminal convictions. The spirit of Section 18 is that all criminal convictions should be that of a court of law established by the law. Anything ultra vires this procedure is a violation of protection of the law as enshrined in Section 18 of the Constitution of Zimbabwe.

The fines imposed by local authorities through by-laws do not have any regard to this procedure at all, your parking and your car is clamped, etc their tickets do not go to court. They are collected by the municipality police and receipted by the Treasury department officials and no reference is made to the courts of law. This is where our difficulty is as the Parliamentary Legal Committee. The matter ends there with the receipt of the fine by the Treasury adding up to their salaries bill. Therefore the protection of the law afforded an accused person by Section 18 of the Constitution is not respected at all. Fines below level 3 levied by local authorities are in violation of Section 18, so to speak, in the wider sense. As long as the court does not review the papers, those fines even below $20, they do not go to the courts; therefore strictly speaking, that constitutes a violation of Section 18. The truth of the matter is that in practice, these fines are never reviewed by any Court of Law; the conviction is not that of a Court of Law but of a prescribed officer and no due process takes place before one is convicted and penalised. Before you take your car you have to pay and that does not go to court. A case in point is Statutory Instrument 30 - we discussed it last time, the Marondera by-laws. That provides for the clamping and towing of offenders' vehicles.

Once one's vehicles have been towed, there is no procedure for contesting that before an impartial tribunal. One has to pay or else the vehicle remains with the local authority which subsequently sells the vehicle by public auction to defray alleged storage costs.

It is absurd that national institutions like the Police, Parks And Wild Life Authorities to mention a few, actually follow due process of the law, while local governments are not aligning their procedures with central government, yet both procedures are affecting the same group of people. These are our citizens, Zimbabwean citizens who are protected by the same Constitution Section 18. The only difference is that in the former, that is the Parks, the Police and Wildlife, the fines they generate go to the Consolidated Revenue Fund whilst the Local Authorities' fines go to their Treasury Department and find its way to pay their workers.

Therefore, the fines imposed by local authorities above level 3, are unconstitutional. Now I am referring to the schedule in general. As long as the accused person does not make an appearance before a Judicial Officer, because in terms of Section 18 it is only a Judicial Officer who can assess your being guilty or not guilty position in law. Even in cases where the fines are within the level 3 limits, the papers should be transmitted to the Judicial Officer who must review the proceedings to see if they are in conformity with substantial justice.

Any procedure that allows collection of criminal fines in a way that is not consonant with the procedures laid down by the law, which is Criminal Procedure and Evidence Act, infringes the rights enshrined in Section 18 of the Constitution of Zimbabwe. Such process is not in terms of any law and to say the least, is unlawful.

So, I have given a broad explanation about where local authorities are infringing the Constitution by providing for fines which are above $20 or level 3 which are collected by their police without reference to going to court. I have had a puncture when I was passing in Marondera. I do not have a spare wheel and then my car is clamped when I am trying to find someone to tow me or to remove the wheel. So, at least I can have a defence. It is not a willing act that I have a puncture there, it is an act of God. Something like that, I should be given the chance to defend myself. This is what we are saying. So Madam Chair, after having given the long lecture, I come back to S.I. 55 of 2012.

I move that S.I. 55 of 2012 be found to be in violation of the law and as such I move that permission be sought that this report be adopted by this House and permission be sought to report progress and leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 58 OF 2012 - NORTON TOWN COUNCIL (MOBILE TAKE-AWAY AND HAWKERS) BY LAWS, 2012

Third Order read: Committee: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 58 of 2012 - Norton Town Council (Mobile Take-Away and Hawkers ) By-Laws, 2012.

Senate in Committee.

MR. MUSHONGA: Thank you Madam Chair, Madam Chair in view of the earlier explanation proffered to the House, I now submit that now the House debate and adopt the Adverse Report of your Parliamentary Legal Committee.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 62 OF 2012 KADOMA (INCORPORATED AREA) (AMENDMENT) BY-LAWS, 2012

Fourth Order read: Committee: Consideration of the Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 62 of 2012 Kadoma (Incorporated Area) (Amendment) By-Laws, 2012.

Senate in Committee.

MR. MUSHONGA: Thank you Madam Chair, I move that this Senate adopts your Parliamentary Legal Committee recommendations of an Adverse Report on Kadoma (Incorporated Area) (Amendment) By-Laws, 2012, in particular the violations which are in Section 2, second Schedule and Part IV, I move that the Senate adopts the report.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 63 OF 2012 RUWA LOCAL BOARD (RENT, WATER, SERVICES AND SUPPLEMENTARY CHARGES) BY LAWS, 2012 (No. 14)

Fifth Order read: Committee: Consideration of the Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 63 of 2012 Ruwa Local Board (Rent, Water, Services and Supplementary Charges) By-Laws, 2012 (No. 14)

Senate in Committee.

MR. MUSHONGA: Thank you Madam Chair, subsequent to the long explanation Ruwa Local Board (Rent, Water, Services and Supplementary Charges (By Laws, 2012) No. 14, in particular that Section 2, Part iv of the schedule violates the Bill of Rights and I move that the Senate adopts that report. I move for the adoption of the report.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 66 OF 2012 EPWORTH LOCAL BOARD (SERVICES AND SUPPLEMENTARY CHARGES) (AMENDMENT) BY-LAWS, 2012 (No. 10).

Sixth Order read: Committee: Consideration of the Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 66 of 2012 Epworth Local Board (Services and Supplementary Charges) (Amendment) By-Laws, 2012 (No. 10).

Senate in Committee.

MR. MUSHONGA: Epworth Statutory Instrument 66 of 2012 - Epworth Local Board (Services and Supplementary Charges (By Laws, 2012 (No.10); as per the explanation proffered earlier on, I move that this House adopts the Parliamentary Legal Committee Adverse Report pertaining to that Statutory Instrument.

Mr. Chairman, I move that you report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 71 OF 2012 - MVURWI TOWN COUNCIL (SERVICES AND SUPPLEMENTARY CHARGES) (AMENDMENT) ( BY LAWS, 2012

Seventh Order read: Committee: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 66 of 2012 - Mvurwi Town Council (Services and Supplementary Charges) (Amendment) By Laws, 2012.

Senate in Committee.

MR. MUSHONGA: Mvurwi Town Council Statutory Instrument 66 of 2012 - Mvurwi Town Council (Services and Supplementary Charges (Amendment) (By Laws, 2012; as per the explanation proffered earlier on, I move that this House adopts the Parliamentary Legal Committee Adverse Report pertaining to that Statutory Instrument. Mr. Chairman, I also move that you report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 73 OF 2012 - GOKWE TOWN COUNCIL (SHOP/BUSINESS LICENCES) BY LAWS, 2012

Eighth Order read: Committee: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 73 of 2012 - Gokwe Town Council (Shop/Business Licences) By Laws, 2012.

Senate in Committee.

MR. MUSHONGA: Gokwe Town Council Statutory Instrument 73 of 2012 - Gokwe Town Council (Shop/Business Licenses) By Laws, 2012 ; as per the explanation proffered earlier on, I move that this House adopts the Parliamentary Legal Committee Adverse Report pertaining to that Statutory Instrument. Mr. Chairman, I also move that you report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO 78 OF 2012-PLUMTREE TOWN COUNCIL (SERVICES AND SUPPLEMENTARY CHARGES) (AMENDMENT) BY-LAWS, 2012 (NO.2)

Ninth Order read: Committee Stage: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 78 of 2012 - Plumtree Town Council (Incorporated Area) (Rent, Services and Supplementary charges) (Amendment) By-laws, 2012 (No.2)

Senate in Committee.

MR. MUSHONGA : I move that the Senate adopts the Parliamentary Legal Committee's Adverse Report on Statutory Instrument No. 78 of 2012 Plumtree Town Council (Incorporated area) (Rent, Service and Supplementary Charges) (Amendment) by-laws 2012, No.2. I move that we report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO 90 OF 2012-CHINHOYI (INCORPORATED AREAS) (AMENDMENT) BY-LAWS, 2012 (NO.12)

Tenth Order read: Committee Stage: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 90 of 2012 - Chinhoyi (Incorporated Areas) (Amendment) By-laws, 2012 (No.12)

Senate in Committee.

MR. MUSHONGA : I move that the Senate adopts the Parliamentary Legal Committee's Adverse Report on Statutory Instrument No 90 of 2012 - Chinhoyi (Incorporated Area) (Rent, Service and Supplementary Charges) (Amendment) By-laws, 2012 (No.12) which is in violation of the law. I move that we report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

COMMITTEE STAGE

ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO 93 OF 2012-CHIPINGE TOWN COUNCIL (SERVICES AND SUPPLEMENTARY CHARGES) (AMENDMENT) BY-LAWS, 2012. (NO.5)

Eleventh Order read: Committee Stage: Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 93 of 2012 - Chipinge Town Council(Incorporated Area) (Rent, Services and Supplementary charges) (Amendment) By-laws, 2012 (No.5)

Senate in Committee.

MR. MUSHONGA : I move that the Senate adopts the Parliamentary Legal Committee's Adverse Report on SI 93 of 2012 Chipinge Town Council (Incorporated Area) (Rent, Service and Supplementary Charges) (Amendment) By-laws, 2012 (No.5) which is in violation of the law. I move that we report progress and seek leave to sit again.

Senate resumed.

Progress reported.

Committee to resume: Thursday, 12th July, 2012.

THE GOVERNOR FOR MATABELELAND NORTH: I move that debate do now adjourn.

Motion put and agreed to.

Debate to resume: Thursday, 12th July, 2012.

On the motion of THE GOVERNOR FOR MATABELELAND NORTH, the Senate adjourned at One Minute past Five o'clock p.m.

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