Source: Legislative reform agenda buttresses ED’s sincerity | The Herald July 27, 2019
Nick Mangwana Special Correspondent
This is the second part of a trilogy of articles that I am writing outlining the reform agenda being pursued by President Mnangagwa in the Second Republic.
In the previous article I dwelt on political reforms that spelled out change of political culture, governance and how citizens interact with the State.
It has to be pointed out from the onset that one of the key efforts by the New Dispensation of President Mnangagwa has been to address and redress the shortcomings of the previous Administration, be it a return to economic fundamentals, turning a new chapter in the political environment in the country, and creating platforms for dialogues with previously perceived enemies.
President Mnangagwa’s term is underpinned by the need to mend fences and build bridges as enunciated in his mantra, “Zimbabwe is Open for Business and Dialogue”.
One stumbling block to this new direction Zimbabwe is taking has been the unresolved issue of aligning the country’s laws to the Constitution of 2013 — and this is the backbone of this instalment.
It is a trite point to make that reforming the laws of the country is a critical task for developing countries and countries in transitional phases — and this has an overarching impact on how the State is run, including how the economy functions. (The Government’s economic blueprint, the Transitional Stabilisation Programme, for example, identifies this interlink, going further to note fundamentals such as Vision 2030 as “improved governance and the rule of law”; “re-orientation of the country towards democracy”; “upholding freedoms of expression and association”; “peace and national unity” “respect for human and property rights”; and “political and economic re-engagement with the global community”.)
The urgent need to realign the country’s laws to the “new” Constitution — the 2013 people-driven charter — has been highlighted and recommended time and again.
It is therefore encouraging that the New Dispensation, in particular the Minister of Justice, Legal and Parliamentary Affairs, Hon Ziyambi Ziyambi, has said that all laws should be fully aligned with the Constitution by the end of 2019.
The statement is encouraging in that previous efforts to compel such actions went unheeded in the bygone era.
The process of aligning the country’s laws is a cumbersome process but the Government is doing remarkably well in churning out reformed legislation.
Over the past 18 months, a number of Bills have been tabled to give expression to reforms that will see our people enjoy more freedoms and rights as well as iron out institutional frameworks necessary to push the economy ahead.
I will touch on some of the reforms here, outlining the import of changes and proposed changes to the law.
From the perspective of the media sector, the New Dispensation is committed to opening up the media, level the playing field and remove laws that had become notorious for denying the public the right and freedom to information.
As such, Government has so far gazetted the Freedom of Information and the Zimbabwe Media Commission Bill.
Freedom of Information Bill repeals the Access to Information and Protection of Privacy Act (Chapter 10:27) and will give effect to Section 62 of the Constitution which enshrines in the Declaration of Rights, the right of access to information. The Bill sets out, among others, the procedure for access to information held by public institutions by the citizenry and permanent residents.
The Zimbabwe Media Commission Bill elaborates on the functioning of the Media Commission as detailed in Section 249 of the Constitution. The Bill extensively amends AIPPA by repealing all provisions relating to the regulation and control of the media.
Cabinet approved the Principles of the Broadcasting Services Amendment Bill. The principles of the proposed BS Bill provide as follows:
“That every person has the right to freedom of expression and freedom of media; that freedom excludes incitement of violence, advocacy of hatred or hate speech, malicious injury to a person’s reputation or dignity, and malicious or unwarranted breach of a person’s right to privacy; the freedom to establish broadcasting and other electronic media of communication, subject only to State licensing procedures”.
It also provides, “that all State-owned media of communications must be impartial and free to determine independently the editorial content of their broadcasts; that there be local content quotas for multiple channel TV licensees”.
The centrality of the media in our politics and society, cannot be understated. Not least, the media — in its plurality and diversity — reflects who we are as a people.
It reflects also the stories of the politics and the economy.
A national reform agenda that does not encompass the media is incomplete. It is small wonder then that in our most divisive past episodes the media has been at the centre of fanning divisions and hatred.
The Rwanda example where media fanned a genocide, is a schoolroom example.
More substantively, our media — including public media — has been constantly flagged for polarisation and bias; this no less during last year’s elections where a number of observer missions pointed to the need for the reform of the media sector.
The Montlanthe Commission report, for example, noted in its report that: “The public media leaned more in favour of the ruling ZANU-PF whilst independent media was heavily tilted in favour of the MDC-Alliance.”
That is an old, simmering problem, and one that has been subject to inquiry, and even academic scrutiny. It is one that the New Dispensation is set to correct and we can report that the Freedom of Information, ZMC, and the envisaged BSA Bills will significantly transform the media sector.
It should also not be lost to us that the media sector is an industry of its own where money is made and jobs created while the outputs of the media mirror material conditions as well as imagination of the nation.
The journey has just begun. The reform process involves changing laws ranging from family and related unions, that is laws governing social interaction, to the economy and politics. Below I outline some of them, loosely categorised in the following sections:
The Marriage Bill 2019 seeks to repeal and replace the current Customary Marriages Act (Chapter 5:07) and the Marriages Act (Chapter 5:11). The objectives of the Bill include ensuring gender equality, recognition of the rights of women, youths and children, and the preservation of cultural values and practices which enhance the dignity, well-being and equality of people. The Bill further provides for the right of any person who has attained the age of 18 to found a family, not to be compelled to enter into marriage against their will, the prohibition of same-sex marriages and the protection of children from sexual exploitation.
The Coroner’s Office Bill seeks to introduce a formalised coroner system to assist in safeguarding human lives through the investigation of preventable deaths, identification of deceased persons, making the persons responsible for the relevant deaths accountable, and prevention of recurrence of such incidents. It repeals the Inquest Act (Chapter 7:07) and amends the Births and Deaths Registration Act (Chapter 5:02). The Bill would set up an efficient coroner system to establish the cause the death, inter-alia, the following circumstances and cases: violent, sudden and unexpected deaths; deaths that occur without a medical doctor’s attention; surgical operation table deaths; and deaths while in jail, police custody or other central authority control.
There is no Child Justice Act in the country and matters relevant to juvenile justice are dealt with through various pieces of legislation, of which the principal ones include the Children Act and the Criminal Law (Codification and Reform) Act. However, the Child Justice Bill is being finalised. The main focus of the Bill is to prescribe how children who will have transgressed are to be held accountable for their actions without their rights being infringed upon.
The Zimbabwe Citizenship Bill will permit dual citizenship for citizens by birth and establishment of Zimbabwe Citizenship and Immigration Board to. inter alia. oversee the granting and revocation of citizenship by descent and registration. The current Act prohibits the simultaneous holding of a Zimbabwean citizenship and that of another country by any citizen whereas the Constitution permits dual citizenship for those who are citizens by birth.
On April 32019, Cabinet approved a proposal by the Minister of Public Service, Labour and Social Welfare on principles to amend the Public Service Act in order to align it with the Zimbabwe Constitution. The amendments seek to, inter alia: change the name of “the Public Service Commission” to the “Civil Service Commission”; align the conditions of service for the Civil Service Commissioners to the Constitution; provide that staff of the Civil Service Commission will follow processes through the National Joint Negotiating Forum before engaging in collective job action; promote full gender balance in all institutions and agencies of Government; provide mechanisms for the implementation of the collective bargaining; provide for the political neutrality of the Civil Service and; make provision for the values and principles governing public administration, disclosure of assets and the code of conduct.
Government has gazetted the Companies and Other Entities Bill (H.B 8. 2018) that seeks to modernise the registration and management of companies and improve corporate governance.
The Consumer Protection Bill was gazetted on December 21 2018 and public consultations were held from February 25 to March 1 2019. The Bill, now cited as the Zimbabwe Consumer Protection Act, will repeal the Consumer Contracts Act (Chapter 8:03) and provide for matters incidental to or connected with issues of consumer protection. It seeks to protect consumers by establishing the Consumer Protection Agency and regulation of consumer advocacy organisations. It also seeks to protect consumers of goods and services against unnecessary price increases by businesses.
The Tripartite Negotiating Forum Bill, whose purpose was to establish a Tripartite Negotiating Forum, with a mandate to ensure consultation, cooperation and negotiation on social and economic issues by Government, organised business and organised labour was gazetted on June 8 2018. It was signed into law in June 2019 by President Mnangagwa and held its first meeting on June 26 2019.
The Labour Amendment Bill principles were approved by Cabinet on March 26 2019. The amendments principally seek to provide for the qualifications and appointment of all judges of the Labour Court. The proposed amendments had been omitted in the General Laws Amendment Bill at the time the Bill was submitted to Parliament.
The Zimbabwe Investment and Development Agency Bill was gazetted on April 5 2019. It is a major component of the Government’s “ease of doing business” reforms to attract both foreign and domestic investors. The Bill’s 10 parts include parts dealing with: the establishment, management and finances of the new ZIDA and its One-Stop Investment Services Centre [OSISC]; investor guarantees and non-discriminatory treatment; investor obligations, including social responsibility; provisions common to investors in and outside Special Economic Zones; investment and other activities in Special Economic Zones; public private partnerships (PPPs); and dispute settlement.
ZIDA will replace, and take over the functions presently entrusted to the Zimbabwe Investment Authority (ZIA) and the Special Economic Zones Authority (SEZA) [both statutory corporations] and the Joint Venture Unit in the Ministry of Finance and Economic Development, which advises Government on public private partnerships.
It will be recalled that on April 3 2019 Cabinet approved Principles for the Securities and Exchange Amendment Bill as presented by the Minister of Finance and Economic Development. The amendments seek to address the existing deficiencies and to align the legislation with market developments and international best practice. More specifically, the proposed amendments aim to achieve the following: provision of full, accurate and timely disclosure of financial results, risk and other information which is material to investors’ decisions; ensuring fair and equitable treatment of holders of securities and that financial statements be in line with international accounting standards; expanding the scope of regulation of capital markets to cover issuers of securities; eliminating regulatory arbitrage in the capital markets sector; introducing civil penalties for contravention of the Act to enhance Securities and Exchange Commission (SECZ) powers in the market; and providing for cooperation and sharing of information with both local and foreign regulators.
The Minister of Higher and Tertiary Education, Science and Technology Development presented principles to amend the Manpower Planning and Development Act (Chapter 28:02), on February 26 2019, in order to align it with the Zimbabwe Constitution. Cabinet approved the amendments, which principally seek to streamline and elevate the role of tertiary institutions as well as professional bodies in the industrialisation and modernisation of Zimbabwe. It also seeks to entrench good corporate governance.
A key pillar of the new administration of President Mnangagwa, the Public Enterprises Reform Programme is gathering pace and this encompasses the reform of parastatals such as the Zimbabwe Electricity Supply Authority, Grain Marketing Board, which have already been rebundled and unbundled, respectively.
Justice & Law
In the area of the justice and law a major highlight has been that of the the repeal of the Public Order and Security Act (POSA) with the Maintenance of Peace and Order whose provisions will be in conformity with the Constitution of Zimbabwe.
Other interventions include, the Constitutional Court Bill which will govern the operations of the Constitutional Court as it provides for the composition, regulations, appeals from decisions of lower courts among other matters. It will also regulate the jurisdiction, power, practice and procedures of the court.
The Supreme Court Amendment Bill will address deficiencies in the existing Act and align it with the Constitution of Zimbabwe by incorporating constitutional provisions for: the right to access justice for all persons; ensuring that every person has right of access to the courts or to some other tribunal or forum established by law for the resolution of any dispute, without any limitation; that all persons are equal before the law; the Supreme Court’s position as the final court of appeal in Zimbabwe, except in matters over which the Constitutional Court has jurisdiction; and the provision that every person has the right of access to the courts, and equal protection of the law.
The Prisons Bill reforms prisons legislation with a view to ensuring that it accords with international norms and standards regarding the administration and treatment of prisoners and providing a prison system that caters for the needs of vulnerable groups, such as pregnant women, juvenile offenders as well as the disabled and other special categories of society with special needs. It proposes the establishment of correctional community centres throughout the country; and enabling prisoners to consult with a medical practitioner of their choice at their own expense.
On February 12 2019 following presentation by the Minister of Home Affairs and Cultural Heritage of the principles for the amendment of the Police Act to align it with the Zimbabwe Constitution, Cabinet approved the principles, thereby paving way for the drafting of the actual Bill. This will see the country’s police force — the Zimbabwe Republic Police (ZRP) — being rebranded to the Zimbabwe Police Service (ZPS) as a professional police responsible for the needs of society.
On December 19 2018, Cabinet approved the principles of the Cyber Protection, Data Protection, and Electronic Transactions Bill. The Bill is meant to provide comprehensive guidelines of what constitutes and what does not constitute a cybercrime in relation to the use; of a person’s (electronic) data and electronic transactions.
On November 20 2018 Cabinet approved principles of the Provincial Councils and Administration Amendment Bill which spells out the mechanisms of decentralisation and devolution. Section (2) of the Constitution obliges Central Government to cede more powers to provincial councils for them to set local development priorities. Under a devolved state, each province will have its own economic development plan underpinned by resources found in that province. Economic plans will be crafted by provincial councils, led by provincial ministers, whose role should also be development oriented.
International Treaties Bill seeks to give effect to the provisions of the Constitution which direct that any international treat that has been concluded or executed by the President or under the President’s authority does not bind Zimbabwe until it has been approved by Parliament and does not form part of the law of Zimbabwe unless it has been incorporated into law through an Act of Parliament.
The Bill will establish a uniform procedure for the consideration and approval of international treaties by the Cabinet and Parliament before their ratification or, in some cases, before their ratification.
In conclusion, it is clear that President Mnangagwa has set the train of reform in motion and the legislative reform agenda is going on well. The above highlights the major talking points.
A lot more has been done, and will be done to ensure that the country fully transitions from the First to the Second Republic. The sincerity of the President in this regard is beyond question.
For the nation to transform in its endeavour towards transformation, everyone is obligated to play their part. Where laws reform is concerned, we expect Parliament and our lawmakers to fully apply themselves as representatives of the people.
Mr Nick Mangwana is the Secretary for Information, Publicity and Broadcasting Services