Since the signing of the new constitution by President Robert Mugabe last year, several government departments have been working towards aligning current laws to conform to the constitution. This has seen a number of Bills being gazetted, with the public given the chance to debate them before they become law.
One such piece of legislation is the Gender Commission Bill gazetted in July this year. Its provisions contain crucial steps towards operationalisation of the proposed Gender Commission, provided for in section 245 of the new constitution, which is intended to oversee and regulate policies towards equal participation of men and women in all decision-making positions, as well as to deal with gender discrimination.
Through the Bill, Zimbabwe seeks to accomplish targets set in international and regional instruments that it is a signatory to, among them the SADC Protocol on Gender and Development, the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the Beijing Declaration and Platform for Action.
The Bill was presented in parliament in August and it is still to be debated amongst legislators. Also, public consultations are still to be held to allow members of the public and organisations to make their contributions on what they think should be included and excluded in the Bill.
The Bill has not, however, been without its critics.
Legal experts and sections of the media have described it as a general disappointment, arguing that it does not add any constitutional powers to the proposed Commission. Instead, it infringes upon the commission’s independence by effectively making it a department of the Ministry of Women’s Affairs, Gender and Community Development.
During a public meeting organised by Women’s Coalition of Zimbabwe, legal expert Dr Lovemore Madhuku argued that the Bill was not in compliance with the new constitution.
“If one reads through the Bill and the constitution, they may be tempted to think that they are two different things. The constitution gives more powers to the commission than the Bill.”
An article published by the Veritas Trust via The Zimbabwean newspaper states that clause 3 of the Bill sets out how Commissioners are appointed, something which is already dealt with in section 245 of the Constitution. According to the Bill, the Commissioners’ terms of office are fixed by the Minister of Women’s Affairs, Gender and Community Development. This is unconstitutional, because by virtue of section 320 (1) of the Constitution, Commissioners are to serve five-year terms which cannot be varied by a Minister.
Women in Politics Support Unit (WIPSU) argues that the Bill creates a closed circuit institution that is not obliged to provide information on investigations to any person outside the state. There are no requirements for access to information or publication of Commission business, undermining Section 62 of the Constitution with its provisions on access to information.
Another challenge pointed out by WIPSU is the inability of the Bill to empower the Commission to act upon its findings directly. The document does not exhaust the powers of the Commission as well, which creates a loophole as to how the Commission will execute its duties.
In Part 4, Clause 9, the Bill provides that the commission shall annually host a Gender Forum. The Forum is a platform to discuss any issue or issues of concern related to the commission’s constitutional statutory functions. It is also provided that the commission can send invitations to ‘relevant’ stakeholder organisations and other persons interested in gender quality issues to submit suggestions for topics to put on the agenda.
The women’s umbrella association, Women’s Coalition of Zimbabwe (WcoZ) observed that is not articulated in the Bill who the stakeholders in the Gender Forum are to be. It also suggests that participants may have to pay fees in order for the Commission to raise funds for the Forum to be convened. This, according to WCoZ, may limit participation due to financial constrains.
Instead of reporting to the Minister of Women’s Affairs, as stated in the Bill, Zimbabwe might consider adopting the South African example where Commissioners are nominated by the public and after being endorsed by a parliamentary committee, are then appointed by the President for a term of up to five years. This allows more than one department to keep check of the appointments of the commission and its operations. Not without its owan failings, this structure has been criticised in a report by the Human Development Department in the African Development Bank which argues that the Commision is not effectively monitoring the state and its departments, something which can be attributed to the fact that government still wields great influence over the Commission.
Another weakness of the Bill is that commissioners are permitted to resign only by giving notice to the Minister of Women’s affairs Gender and Community Development though section 341 of the Constitution requires notice to be given to the President. Much more importantly, the Bill gives the Minister power to dismiss Commissioners from office for “unsuitable” conduct or for mental or physical incapacity — even though, under section 237 of the Constitution, Commissioners can only be removed from office by the President on precisely specified grounds, and after the convening of a tribunal to inquire into their removal. These and other irregularities are in conflict with the provisions of the Constitution and will present a challenge to the operations of the Commission once appointed.
The appointment of an effective Gender Commission will ensure gender equity and equality in decision-making spheres including Cabinet where women currently only had a mere 9% representation (statistics from Cabinet appointed in 2013). Only 11 out of the 86 female members of parliament were appointed to that Cabinet, which was in disharmony with article (12) of the SADC Protocol on Gender and Development which states that, “States Parties shall endeavor that, by 2015, at least fifty percent of decision-making positions in the private and public sectors are held by women including the use of affirmative action measures as provided in Article 5”.
Of course, affirmative action has been shown by the adoption of the quota system in the last elections. However, the appointment of the Cabinet by the president did not show any adherence to the Protocol which calls for equal representation in ‘all’ decision making bodies.
As part of its recommendations, WIPSU puts forward that the government should consider redrafting the Bill to establish the independence of the Commission, both in its powers and functionalities. The independence of the Commission is crucial if all departments are to be under scrutiny for any violations against gender balance and equality.
Included in the report is the observation that the Commission needs to be equipped with clear reporting mechanisms, as well as the necessary powers to address its findings. The Commission is advised to share information on its findings with the public to increase transparency and accountability in its operations.
But such findings will be rendered useless if no action is taken. For the Commission to be effective, it should be furnished with the necessary powers as relying on another institution or department will delay justice and undermine its purpose.
After the Commission is set up, it should be able to appoint its own secretariat independently in line with the section. The Commission should also be able to report directly to parliament and convene meetings as and when necessary to ensure its independence.
The Constitution clearly states in Chapter 12 section 233 (1) subsection C that one of the objectives of the independent commissions is to promote constitutionalism. Which means that operations of government should adhere to what is stated by the supreme law of the land.
The Gender Commission Bill contradicts multiple provisions within the new Constitution, hence the need for it to be immediately revisited and revised. WCoZ has echoed the need for the Bill to clearly articulate the powers, responsibilities and independence of the Commission. It refers to section 235 of the Constitution with emphasis on sub section (2) which states that:
“The state and all its institutions and agencies of government at every level, through legislative and other measures, must assist the independent Commissions and must protect their independence, impartiality, integrity and effectiveness.”
The independence of the commission is of dire importance if the commission is to govern the operations of the executive and cabinet to ensure the urgent redress of gender imbalances.