via Cosmetic changes to general laws – lawyers – The Zimbabwean 21 May 2015
Zimbabwe Lawyers for Human Rights (ZLHR) acknowledges the gazetting of the General Laws Amendment Bill (“the Bill”) on 8 May 2015.
This Bill has been introduced two years after the Constitution was adopted and ‘makes amendments to Acts to bring them into conformity with the Constitution.’ It also provides for other related matters. This Bill seeks to align 126 statutes with the new Constitution of Zimbabwe.
Of concern is the fact that the Bill mostly introduces only minor changes to these Acts, such as re-referencing, changing titles of offices, officials, institutions etc, and the inclusion of new preambles. While many Acts require such cosmetic amendments, for many Acts the changes are piecemeal and fail to align the most crucial and substantive provisions required to comply with the Constitution.
ZLHR welcomes the fact that the Bill does seek to introduce some substantive amendments –notably to the Interpretation Act, the Privileges, Immunities and Powers of Parliament Act, the Electoral Act, the Criminal Law (Codification and Reform) Act and the Trade Marks Act – but is concerned that some of these amendments do not in fact further the protection of constitutional rights.
For example: –
• The Privileges, Immunities and Powers of Parliament Act: The new Constitution provides for greater freedom of speech in Parliament, but the proposed amendments allow Parliament to impose harsher fine penalties, imprisonment for non-payment of fines, and administrative imprisonment for contempt. Also, where Parliament cannot now impose criminal penalties or imprisonment as a result of the new constitutional provisions, the proposed amendments simply circumvent this by providing for referral to the Prosecutor General to do so.
• The Electoral Act: The new Constitution requires that the Zimbabwe Electoral Commission (ZEC) be responsible for the registration of voters and maintenance of the voters’ roll. The amendments in the Bill provide for this, but also effectively allow for the delegation and sharing of this responsibility with the Registrar General, which undermines ZEC’s independence and effectiveness, and maintains the role of the Registrar General, which people had wanted removed from his responsibility. The amendments to the Act should also have gone further to protect voters’ rights, for example by enabling Zimbabweans in the diaspora and places of detention to be able to vote.
ZLHR is also disappointed that certain laws that directly contravene the Declaration of Rights have not been repealed in the Bill, in spite of extensive campaigning by ZLHR and other legal and human rights experts in this regard over the two years since the introduction of the Constitution.
ZLHR has specifically prepared an extensive list of Priorities for the Harmonisation of Legislation with the new Constitution of Zimbabwe. It is a pity that Parliament has not facilitated public involvement in its legislative process nor consulted interested parties about the Bill, as required under the Constitution.
The following Acts in particular require urgent amendment: – • Criminal Law (Codification and Reform) Act: Undermines freedom of expression and movement – Provisions on insulting the President, making defamation a criminal offence, and allowing for arbitrary arrest of women for ‘soliciting’ must be removed. Also, although some clarification on ‘aggravating circumstances’ has been provided, the Bill needs clearer provisions on the application of the death penalty.
• Public Order and Security Act: Undermines the right to freedom of assembly and association – The Act in its current form unconstitutionally maintains the excessive powers of the police to arbitrarily curtail peaceful gatherings, meetings and does not recognise the right to picket.
• Access to Information and Protection of Privacy Act: This Act greatly restricts the constitutional right of access to information and freedom of the media and must be amended.
• Broadcasting Services Act: This Act violates the right to receive information, by requiring all media consumers to obtain a license for their receivers, and allows for biased reporting within state-funded entities.
The following Acts impacting on the protection of socio-economic rights also require urgent amendment: – • The Housing and Building Act; Housing Standards Control Act: These Acts undermine property rights and freedom from arbitrary eviction. They must be amended to protect these rights and to ensure due process.
• Urban Councils Act; Rural District Councils Act; Water Act: These Acts do not currently clearly set out state obligations to deliver services as citizens’ rights (e.g. the right to water, the right to shelter), as required. They must also provide for devolution of governmental powers and responsibilities to local councils, providing improved accountability in service provision.
• Other important Acts affecting socio-economic rights (not exhaustive) yet to be amended include the Education Act (to include a definition of basic education, the nature and extent of state-funded education, and the use of official languages); the Public Health Act (it violates the right to privacy, right to health and is discriminatory); the Disabled Persons Act (the constitutional rights of persons with disabilities must be incorporated); the Prisons Act and the Police Act (the rights of persons in detention and police custody must be protected, eg. their right to food and water.)
The following Acts have also not been substantively amended in the Bill, as required: – • Citizenship Act: This Act must incorporate the new constitutional provisions on citizenship, for example that citizens by birth now hold citizenship as an absolute birthright and may therefore hold multiple citizenships, and that citizenship is now granted to foundlings to protect against statelessness.
• Births and Deaths Registration Act: This Act also requires amendment to provide for the issuing of birth certificates to foundlings to protect against statelessness.
• Children’s Act: The Act must be amended to incorporate the constitutional rights of the child to equal treatment, to be heard, to a name, to national documents, to parental care, to protection from exploitation, to education, to health care, to not be detained and to protection by the courts.
• Other Acts restricting civil and political rights (not exhaustive) include the Prisons Act and Police Act (they restrict the rights of arrested and detained persons), the Magistrates Court Act (it allows for imprisonment for failing to pay a debt), the Protected Places and Areas Act (it restricts freedom of movement), the Private Voluntary Organisations Act (it hinders the right to enter into association with others and work for a common cause), and the Interception of Communications Act (it restricts the right to privacy).
In conclusion, the proposed amendments fall far short of bringing all our laws in line with the new Constitution. ZLHR calls on Parliament to urgently implement the outstanding legislative reforms, as set out in more detail in ZLHR’s Harmonisation Priorities List. The Bill must not be seen as an end unto itself: indeed, certain Acts will be more appropriately addressed in independent Bills (the National Peace and Reconciliation Bill, for example). ZLHR therefore calls for Parliament’s work on harmonisation to continue as a matter of urgency but in good faith, allowing for true public participation and parliamentary debate in the process.