CONSTITUTION WATCH 33/2013

CONSTITUTION WATCH 33/2013

[20th August 2013]

Giving Immediate Effect to the New Constitution – Part I

Introduction

There are changes that must be made to our statute law immediately to give effect to the new Constitution.  These changes, which should have been made before the end of the last Parliament on 28th June, are:

• ·      those needed to give effect to the provisions of the new Constitution which came into force on the day it was gazetted as an Act, i.e. 22nd May.  The provisions that came into force then were those dealing with the Declaration of Rights, citizenship, elections, the conduct of public officers, particularly members of the security services, and provincial and local government.  Even though the necessary changes were not made when they should have been, they still have to be made — indeed, they become more urgent as time goes on.  Apart from the fact that they will make the Constitution effective, they will have to be made if Zimbabwe is to become the open, tolerant multi-party democracy envisaged by section 3 of the Constitution.
• ·      those needed to be ready for those provisions in the rest of the new Constitution which will come into effect when the President-elect is sworn in this coming Thursday 22nd August, but are not catered for in existing law, e.g. the establishment of the National Prosecuting Authority.

Of course it will also be necessary to harmonise other laws with the new Constitution on a continuing basis and this will be covered in future Constitution Watches, but we will start with pointing our changes that are urgent.

Declaration of Rights

As stated above, the Declaration of Rights is already in operation, and several statutes should have already been amended to reflect this:

(a)  Right to life [section 48 of the new Constitution]

The new Constitution permits the death penalty to be imposed, as under the present constitution, but only in more limited circumstances:

• ·      It can be imposed only for “murder committed in aggravating circumstances” [whatever that means].
• ·      A court must have a discretion whether or not to impose it.
• ·      It can be imposed only on men between the ages of 21 and 70.

The Criminal Procedure and Evidence Act [CP&E Act] and the Criminal Law (Codification and Reform) Act [Criminal Law Code] will have to be amended to give effect to these restrictions.  At present they do not do so:  under sec 337(a) of the CP&E Act the death sentence is mandatory for murder, whether aggravated or otherwise, unless the court finds there are extenuating circumstances; and it may be imposed on men and women between the ages of 18 and 70.  The Criminal Law Code goes further and allows people to be sentenced to death for attempts, conspiracies and incitements to commit murder.

Grave injustice will be done if these amendments are not made immediately, because if they are not people may be sentenced to death unconstitutionally. [Note: there has been at least one person sentenced to death since this provision of the Constitution came into force.  Presumably the sentence will have to be set aside on appeal.]

(b)  Rights of arrested, detained and accused persons [sections 50 & 70]

The new Constitution gives the following new rights:

• ·      Arrested persons must be allowed, without delay and at State expense, to contact anyone of their choice, including their relatives or legal practitioners.
• ·      Arrested persons must be allowed, without delay though at their own expense, to consult their medical practitioners in addition to their lawyers.
• ·      Arrested persons must be informed of these rights promptly.
• ·      Arrested persons must be released pending charge or trial “unless there are compelling reasons justifying their continued detention”.  In other words, they are entitled to bail in the absence of compelling reasons to the contrary.
• ·      Arrested persons must be released after 48 hours unless their further detention has been authorised by a “competent court” [not by a police officer or a justice of the peace].  Their detention cannot be extended in any other way.
• ·      Arrested, detained and accused persons have a right to silence and must be informed of that right.
• ·      Accused persons are entitled to legal aid “if substantial injustice would otherwise result” and must be informed of that right.
• ·      Accused persons cannot be convicted of an act or omission that is no longer an offence [section 70(1)(l)].  Hence, once a statutory provision creating an offence is repealed, no one can be convicted of the offence.  This is contrary to the current position, enshrined in section 17 of the Interpretation Act, that persons can be prosecuted for conduct which was criminal when it was committed, even if the statute creating the crime has since been repealed.
• ·      Detained persons must be allowed to communicate with and be visited by their relatives, their religious counsellors, their lawyers, their medical practitioners and anyone else of their choice.
• ·      Anyone may apply for an order of habeas corpus to obtain the release of a detained person or to ascertain his or her whereabouts;  it is not necessary for the applicant to establish locus standi.
• ·      Convicted persons have a right, “subject to reasonable restrictions”, to have their cases reviewed or to appeal to a higher court against conviction and sentence [section 70(5)].  This right probably renders unconstitutional section 44 of the High Court Act, which obliges convicted persons to obtain leave to appeal before they can appeal against judgments of the High Court.

None of these rights is provided for in our statute law, which will have to be amended urgently to provide for them.  In particular, the following provisions of theCriminal Procedure and Evidence Act [CP&E Act] will have to be amended:

• ·      the provisions allowing arrested persons to be detained for longer than 48 hours before being brought to court will have to be repealed.
• ·      section 121, which allows a person who has been granted bail to be kept in detention for up to seven days if the Attorney-General wishes to appeal, must be amended.  While the National Prosecuting Authority [which from now on will replace the prosecuting functions of the Attorney-General] must be able to appeal against unjustified grants of bail, but the seven-day period within which to formulate the grounds for appeal is far too long [and has in the past used as a punitive measure without any appeal being lodged]:  it should be reduced to 24 or at most 48 hours.
• ·      the provisions allowing courts to draw adverse inferences from pre-trial silence, and requiring accused persons to outline their defences at the commencement of trials, will need to be repealed or extensively amended in order to respect accused persons’ right to silence.

(c)  Freedom of assembly and association [section 58]

The Public Order and Security Act should be amended to prevent abuse.  In its present form the Act severely restricts freedom of association, and the following amendments must be made as soon as possible:

• ·      There should be a statement in the Act reminding police officers to accord everyone, regardless of political affiliation, their fundamental rights of freedom of peaceful assembly and association.
• ·      Section 25 of the Act, which requires notice of public gatherings to be given to the police, should be amended to make it clear that the police have no power to refuse permission for peaceful gatherings, and that failure to give notice will not render a gathering unlawful or make the convenor liable to criminal prosecution.
• ·      Magistrates, rather than police officers, should be given power to prohibit gatherings, and then only if the gatherings are likely to lead to public disorder.
• ·      Whenever the police use force to disperse a gathering or to quell disorder at a gathering, they should be compelled to prepare a detailed written report and to provide the convenor of the gathering with a copy of the report.

(d)  Freedom of expression and freedom of the media [section 61]

The new Constitution expressly protects academic freedom and freedom of the media [which includes protection of the confidentiality of journalists’ sources of information].  It also guarantees freedom of establishment of broadcasting and other electronic media, subject only to licensing procedures that are necessary to regulate the airwaves and are independent of State, political or commercial control.  State-owned media must be impartial and allow fair presentation of divergent views and opinions.

The following changes will be needed to give effect to these provisions:

• ·      At present members of the Broadcasting Authority of Zimbabwe are appointed by the President after consultation with the Parliamentary Committee on Standing Rules and Orders and the responsible Minister [who is himself appointed by the President]. There is no provision to ensure that the President’s appointees are politically neutral or represent a reasonably wide variety of opinions.  The Broadcasting Services Act must be amended to make such a provision.
• ·      The boards of the Zimbabwe Broadcasting Company [the successor to the statutory ZBC] and the Mass Media Trust are appointed in terms of the company’s articles and the trust’s trust deed respectively, but legislation can and should be enacted to require the boards to be politically neutral so as to ensure compliance with section 61(4)(b) of the new constitution [which obliges State-owned media to be impartial].
  • ·      The Access to Information and Protection of Privacy Act should be repealed or, at the very least, amended:
  • ·      to remove the restrictions on foreign participation in the production of local newspapers and other media. The restrictions stifle investment in the media and violate freedom of expression — a right which is enjoyed by foreigners as well as Zimbabweans;
  • ·      to remove the need for journalists to be accredited under the Act before they can be employed on a full-time basis by media publishers, as this unjustifiably restricts the scope of their work.
  • ·      Section 33 of the Criminal Law Code, which makes it a crime to insult the President, should be either repealed entirely or amended so as to reduce its scope.  An executive President is a politician and should be open to the same criticism and satire, whether fair or unfair, as all other politicians.
  • ·      The University of Zimbabwe Act [and Acts establishing other universities] should also be looked at to ensure that its provisions do not infringe academic freedom [for example, by giving the Minister power to approve or disapprove the University’s statutes and ordinances].

(e)  Rights of women [section 80]

The new Constitution prohibits discrimination between men and women, particularly in relation to custody and guardianship of their children.

The Guardianship of Minors Act will need to be revised so that it confers equal rights on mothers and fathers — at present it assumes that fathers are the guardians of children [Section 3] and favours mothers in regard to the custody of children.

The Marriages Act and the Customary Marriages Act need to be amended to ensure that marriage of girls under 18 is prohibited in both civil and customary law.

The legislative changes necessitated by the new Constitution’s provisions on citizenship, elections, the conduct of public officers, particularly members of the security services, and provincial and local government, which should have been made immediately after these sections of the constitution came into force on22 May will be dealt with in Part II.