THE (E)MASCULATION OF ZIMBABWE S GENDER COMMISSION 1

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1 THE (E)MASCULATION OF ZIMBABWE S GENDER COMMISSION 1 Introduction With the recent swearing-in of Zimbabwe s Gender Commissioners, RAU believes it is worth revisiting some of the criticisms raised by civil society about the Commission - and adding some of its own. Despite the new Constitution providing for five Independent Commissions Supporting Democracy Government has shown little enthusiasm for ensuring that they become properly and duly operational. The five are: the Zimbabwe Electoral Commission; the Zimbabwe Human Rights Commission; the Zimbabwe Media Commission; the Zimbabwe Gender Commission; and the National Peace and Reconciliation Commission. 2 Although the first three of these Commissions were already extant at the time the new Constitution became effective, they have regressed operationally rather than progressed. Neither the Zimbabwe Electoral Commission nor the Zimbabwe Human Rights Commission have constitutionally appropriate legislation in place to facilitate, and, in some cases render lawful, their operations, while in the case of the Media Commission, the terms of office of its Commissioners expired on 10 th February 2015 and new Commissioners are yet to be appointed. It is a constitutional requirement that the Zimbabwe Gender Commission should be in place and operational. Governmental and parliamentary steps to remove this on-going constitutional violation have, however, moved at an extremely slow pace and without any sense of urgency. Constituting the Commission The Chairperson of the Commission is appointed by the President after consultation with the Committee on Standing Rules and Orders. There are eight other Commissioners. One is a nominee of the National Council of Chiefs, 3 and the remaining seven are appointed by the 1 Written by Derek Matyszak, Senior Researcher, RAU Section 232 of the Constitution. 3 Why the framers of the Constitution found it necessary to include a traditional leader on the Commission is obscure. In general traditional leaders (who with one, perhaps two, exceptions are exclusively male) are known for their patriarchal values and extremely conservative approach to gender issues and gender equality. They are more likely to hinder than to advance the work of the Commission. If the presence of a Chief is to enable the Commission to sound out possible objections of traditional patriarchs, this could have been made a requirement without making one such persons a member of the Commission with full voting rights in its deliberations.

2 President from a list of not fewer than 12 nominees submitted by the Parliamentary Committee on Standing Rules and Orders, 4 after a process of public interviews. 5 Candidates for the Gender Commission were only shortlisted by Parliament in July 2014, almost a year after the effective date of the new Constitution, with the requisite public interviews of an uninspiring line-up of aspirant Commissioners, 6 only taking place between 23 rd and 25 th March The appointment of the Commissioners was announced three months later, on 29 th June, 2015, and a further two months passed before they were sworn into office on the 2 nd September, Thus, over two years after the Constitution became effective, the Zimbabwe Gender Commission was finally brought into being as constitutionally required. The Commissioners, chosen from the list of 12 submitted to the President, appear to have excluded the five who performed best during the interview stage. 8 The selection of the Commissioners has attracted trenchant criticism from rights groups who point out that none have any known or visible experience or skill in gender issues. 9 Rendering the Commission Operational It is extremely doubtful that the Commission can constitutionally and lawfully commence its work in the absence of enabling legislation. To this end a Zimbabwe Gender Commission Bill 10 was gazetted on 25 th July 2014 and public input on the Bill invited. The Bill is currently being debated in National Assembly after the second reading. 11 However, a joint report to the National Assembly on 22 nd June 2015 by the Portfolio Committee on Women s Affairs, Gender and Community Development, and the Senate s Thematic Committee on Gender and Development, drew the attention of Members of Parliament to the many flaws and unconstitutional provisions in the Bill that were raised with the Committees by the public and civil society organisations. Most of these defects arise from government s reluctance to treat the Commission as an independent body, and rather to deal with the body as a department within the Ministry of Women s Affairs, Gender and Community Development. 12 There is direct and unconstitutional interference with the operations of the Commission, and, even where this is not so, the shadow of government is cast over the body in numerous other areas. Many sections of the Bill are objectionable on these grounds. 4 Section 245(1) of the Constitution. 5 Section 237(1)(c) of the Constitution. 6 One Member of Parliament was quoted as stating: One female candidate was asked what made her believe that she was suitable to be a gender commissioner. Her answer was shocking. She said she was suitable because she had two daughters. That is the quality of applicants that dominated the selection process see President Subverts Gender Commission The Zimbabwean They are: Mrs Margaret Sangarwe-Mukahanana (Chairperson) Dr Nyepudzai Nyangulu, Mrs Sibongile Chambakale Mauye, Mrs Tsungirirai Kundai Hungwe-Chimbunde, Mrs Naomi Chimbetete, Mr Obert Matshalaga, Mr Victor Nkiwane; Dr Paul Kadzima and Mr Peter Mawonera (Chief Chikwizo) 8 President Subverts Gender Commission The Zimbabwean Opposition MPs claimed that the top five had been overlooked in favour of tired, retired and recycled Zanu (PF) activists and regime apologists. The Herald preferred to describe the Chairperson, a former employee in the Office of the President and Cabinet and a former permanent secretary in the Ministry of Tourism as a veteran civil servant Gender Commission Appointed and Mugabe Swears in Gender Commissioners The Herald Where are the Gender Experts in the Gender Commission? blog/2015/03/07/where-are-gender-experts-gender-commission 10 H.B. 8, The second reading commenced on Most of the points which follow were raised by Veritas in its analysis of the Bill see Constitution Watch 8/

3 Criticisms of the Zimbabwe Gender Commission Bill. i) The Jurisdiction of the Commission The Bill seeks to introduce a host of restrictions pertaining to who may and may not be a Commissioner, which are not set by the Constitution. 13 These relate to citizenship, residence, past criminality, bankruptcy, etc. 14 The peculiarity of doing so is readily apparent when one considers that the Commissioners have been appointed before the Act containing these supposed qualificatory restrictions has been signed into law by the President itself an anomaly. 15 Contrary to the Constitution, the Bill seeks to limit the investigations, which are the subject of the Commission s reports, merely to systemic barriers prejudicial to gender equality, and not the more general violations of rights and general promotion of gender equality as provided for by the Constitution. 16 The Bill also intrudes on the functions of the Commission by defining on its behalf what is to constitute a ''systemic barrier prejudicial to gender equality. 17 Furthermore, the manner in which the investigative function of the Commission is formulated seems to be designed in the hope of the government being treated as beyond the purview of the Commission s investigations, which are defined as being: to investigate any systemic barrier prejudicial to gender equality in a specific named sphere of activity or named sector of the society or economy. 18 This provision may be usefully compared with South Africa s Commission on Gender Equality Act, The equivalent portion of the Act is as follows: The Commission a) shall monitor and evaluate policies and practices of: i) organs of state at any level; ii) statutory bodies or functionaries; iii) public bodies and authorities; and iv) private businesses, enterprises and institutions, in order to promote gender equality and may make any recommendations that the Commission deems necessary; b)... c) shall evaluate 13 Compare section 236(3) of the Constitution. 14 Paragraph 2(1) of the First Schedule. 15 The situation furthers the argument that there must be an enabling Act for the Commission. The passage of the enabling Act should have preceded the appointment of the Commissioners. The Interpretation Act [Chapter 1:01], Section 25, allows the appointment of persons to office in terms of an Act which is yet to become law only if the Act has at least reached the stage of presidential assent. 16 Section Section 2(2) of the Bill. 18 Section 5 of the Bill. 19 Act No. 39 of 1996.

4 i) any Act of Parliament; ii) any system of personal and family law or custom; iii) any system of indigenous law, customs or practices; or iv) any other law, in force at the commencement of this Act or any law proposed by Parliament or any other legislature after the commencement of this Act, affecting or likely to affect gender equality or the status of women and make recommendations to Parliament or such other legislature with regard thereto. Similarities between the Bill and the South African Act in some areas suggest that the drafters of the former were cognisant of the provisions of the latter, thus making their studious avoidance of provisions allowing for the scrutiny of governmental bodies all the more significant. ii) Executive Intrusions on the Independence of the Commission Section 3(2) of the Bill proposes that the term of office of the Commissioners is to be fixed by Minister of Women's Affairs, Gender and Community Development, despite the fact that the term of office for Commissioners, under the Constitution, is a five year period. Furthermore, under the Constitution, this period can only be truncated on precisely specified grounds and after the convening of a tribunal to inquire into their removal. 20 Contrary to the Constitution, the Bill proposes to give the Minister the power to dismiss a Commissioner from office if he or she has been guilty of conduct which renders him or her unsuitable to continue to hold office, or on the basis of mental or physical incapacity. 21 In terms of the Bill, a resigning Commissioner gives notice to the Minister. 22 Section 341 of the Constitution requires that the notice be given to the President. The Minister is omnipresent throughout the operations of the Commission. Most egregiously and blatantly unconstitutional of all, the Bill purportedly empowers the Minister to give the Commission policy directives relating to the exercise of its functions, and the Commission will be obliged to comply with them. 23 As with all Chapter 12 Commissions the Independent Commissions Supporting Democracy the Constitution requires that they be independent and not subject to the direction or control of anyone. 24 There are many other instances of undue, if not unconstitutional, ministerial presence. The Minister may issue a certificate that the disclosure of any class of evidence being investigated by the Commission is contrary to the public interest and require the Commission to take steps to prevent the public disclosure thereof. 25 After conducting its investigations, the Commission merely reports on its findings and makes recommendations to the Minister. 26 There is no indication that the Minister must act or do 20 Section 320(1) as read with Section 237 of the Constitution. 21 Paragraph 4(2) of the First Schedule. 22 Paragraph 4(1)(a) of the First Schedule. 23 Section 16 of the Bill. 24 Section 235 of the Constitution. 25 Section 6(6) of the Bill. 26 In South Africa the Commission may refer issues to the Human Rights Commission, Public Protector or to an appropriate authority for further action section 1191)(e).

5 anything at all in relation to these reports. 27 The Bill also seeks to prescribe the structure of such reports, including the constitutionally prescribed annual report which must be in such form as the Minister may determine and as set out in considerable detail in the Bill itself. 28 The Minister is also to prescribe the type and form of accounts to be kept by the Commission, 29 and control the alienation of the Commission s assets and some of its funds. 30 The Public Service Commission is to be empowered by the Bill to appoint internal auditors to the Commission. 31 The modus operandi of the Commission is not left entirely to the Commissioners as it ought. The Bill sets out detailed instructions to the Commission, requiring it to convene a Gender Forum, micromanaging the precise manner in which the Gender Forum is to be convened and conducted. Any conclusions reached at the Forum must be conveyed to the Minister. 32 The Commission is directed to meet at least once every three months and must also convene special meetings if directed to do so by the Minister. 33 Once again the manner in which these meeting are to be held is micromanaged by the Bill and minutes of all must be sent to the Minister. 34 Section 10 of the Bill requires the Commission to appoint a Chief Executive Officer to supervise and manage the Commission's staff, activities, funds and property. This provision is reminiscent of the appointment of Chief Executive Officers, who are used for purposes of control and surveillance by Central Government, in Rural District Councils. 35 Chief Executive Officers must be appointed in consultation with the Minister, 36 and residential and citizenship restrictions are applied to potential appointees which can only be waived with ministerial permission. All other appointments of staff by the Commission must likewise be made in consultation with the Minister. The Minister, after consultation with the Commission, may make regulations providing for all matters which, in his or her opinion, are necessary or convenient to give effect to the Act. 37 Such regulations may provide for the terms and conditions of service of the Chief Executive Officer and the Commission's staff. This is notwithstanding that section 234 of the Constitution provides that the Commission has the power to employ staff and, subject to the law, to regulate their conditions of service. iii) Financing In terms of section 325(1) 38 of the Constitution, government is bound to ensure that: 27 Fortunately, the Constitution, though not the Bill, allows the Commission to submit reports to Parliament on any gender issue it believes ought to be brought to the attention of Parliament section 247 though unhappily these too must be submitted through the Minister. 28 Section 12 of the Bill. 29 Section 14(3). 30 Paragraphs 4 and 7 of the Second Schedule. 31 Section 14(3). 32 Sections 7and 8 of the Bill. 33 Paragraph 7 of the First Schedule. 34 Paragraph 9 of the First Schedule. 35 See Matyszak D.A. Formal Structures of Power in Rural Zimbabwe RAU November A proviso in the section that the Minister, with the approval of the Civil Service Commission, may assign persons employed in his or her Ministry to act as the Chief Executive Officer of the Commission, fortunately, appears likely to be removed from the Bill. 37 Section 17 of the Bill. 38 This largely repeats an earlier provision to the same effect section 322, which in addition places an obligation on Parliament to ensure adequate funding.

6 adequate funds are provided to the Commissions and other institutions established by this Constitution, to enable them to perform their functions effectively The government has allocated funds for all Independent Commissions Supporting Democracy, including the Gender Commission, as sub-votes of whichever Ministry is deemed to be the line Ministry for each particular Commission, 39 thus impacting, as the Parliamentary Legal Committee has noted, on the independence of these Commissions. 40 Furthermore, in the case of several Commissions, and the Zimbabwe Gender Commission in particular, the budgetary votes have ranged from the paltry to the derisory or merely nominal, suggesting a realisation on the part of the Finance Minister when presenting his budgets that several of the Commissions were not expected to be operational. Thus, in 2014 and 2015, the allocations for the Zimbabwe Gender Commission, was $ , for both years. Conclusion It is readily apparent that the Independent Commissions Supporting Democracy are an extremely low priority for Government in bringing executive action into line with the new Constitution and the Gender Commission the subject of particular disinterest even within this category. The tardiness of Government in this regard appears motivated both by a distaste for independence of these Commissions, and the financial implications of rendering them operational. Government s implementation of the new Constitution to date has been marked by an attempt to claw back any executive powers seen as diminished by the Charter, and to give the Constitution as limited an interpretation in this regard as possible, over-reaching the constitutional boundaries on several occasions. The provisions in the Gender Commission Bill and the approach of government generally to this Commission have the effect of rendering the Commission more a department within a Ministry rather than an independent body. While it is permissible, and indeed highly desirable that there is an enabling Act for each Commission to establish the parameters of their operations within the confines of the Constitution, section 341 of the Constitution requires that such Acts do not compromise the Commissions independence or effectiveness. The contrary is clearly the case in regard to this Bill, but fully in keeping with Government s insistence on, and inability to wean itself from, highly centralised control over all aspects of Zimbabwean society. 39 Determined by the Minister set by the enabling Act as responsible for that Act s administration. 40 Per Jessie Majome see Parliament of Zimbabwe Tuesday, National Assembly Debates