Opinion / Columnist
Mnangagwa: How to kill a peace commission at birth
13 Feb 2018 at 05:54hrs | Views
Coordinator of the National Transitional Justice Working Group, Dzikamai Bere told 263Chat that the National Peace and Reconciliation Commission (NPRC) Act has four weaknesses which threaten the effectiveness of the commission.
"The act ignored the transitional justice questions for Zimbabwe, the issues which the commission and the society is not dealing with. The Operation Restore Legacy raises new transitional justice questions which the commission and the society should be seized with.
"Within the NPRC Act there is the lack of victim support, the commission has published a notice with the groups they want to meet when they go for their meetings but victims are not mentioned. So that idea of having invisible victims, stakeholders said it's problematic," explained Bere.
However, stakeholders felt that there are various ares that the NPRC could improve like sensitivity to environment.
They noted that the first press briefing the commission held was at the Munhumutapa Building where the President's office is located and this restricted access of people who may have wanted to participate.
They said this does not inspire confidence in the independence of the commission.
A number of political violence victims voiced out their concerns with regards not being inlcuded in mapping the way forward.
Some said the NPRC has not approached them and is moving too fast without guidelines and would want to help them with legislation so the public can have confidence in them and the conflicts they want to resolve.
Below is Dzikamai Bere's opinion article on "How to kill a peace commission at birth."
The drafters of the National Peace and Reconciliation Bill, HB.2, 2017, (NPRC Bill) will certainly teach the world a few lessons on how to strangle a peace commission right at its birth. They encourage all of us to lose hope in ever building a more peaceful country. This article will highlight the four killer weaknesses of the NPRC Bill, which if not addressed, will condemn the NPRC to certain death, and destroy any hopes of a legitimate national healing process under the current leadership. But first, some background.
On February 10 2017, the government of Zimbabwe gazetted the NPRC Bill to put the National Peace and Reconciliation Commission (NPRC) into operation and related matters. The NPRC is one of the five independent commissions established by Chapter 12 of the Constitution of Zimbabwe. Section 251 specifically establishes the NPRC with the mandate to ensure post-conflict justice, healing and reconciliation. To operationalise the NPRC, there must be a law which provides the legal framework for the NPRC, hence this Bill. This NPRC Bill is the successor to the National Peace and Reconciliation Commission Bill H.B 13, 2015 which was gazetted on December 18 2015 and withdrawn from Parliament in May 2016 following criticism by stakeholders, the public as well as the Parliamentary Legal Committee.
Nine months later, the Bill is back again and four weaknesses stand out.
First, the Bill violates section 235 of the Constitution of Zimbabwe which states that independent commissions are independent and not subject to the direction or control of anyone. The Constitution states clearly that no person may interfere with the functioning of the independent commissions. In sharp contrast, the NPRC Bill creates a commission that is subject to the control and manipulation of various individuals and ministers. In at least six clauses, the Bill requires the National Peace and Reconciliation Commission (NPRC) to consult members of the executive in carrying out its duties. For example, the NPRC is required to consult a minister for where to situate its offices. The commission cannot establish its secretariat without consulting the minister. The worst of this executive interference is section 9 (6) which gives the minister of State Security power to stop the public disclosure of information before the commission, if in his "opinion" such information is contrary to public interest.
The Bill's invocation of state security in trying to curtail the work of a commission that is meant to encourage truth-telling regarding the past is a worrying affront to section 252 (c) of the Constitution which mandates the commission to bring about national reconciliation by encouraging people to tell the truth about the past and facilitating the making of amends and the provision of justice. What makes this provision even more dangerous is that it does not even qualify or attempt to define what it deems to be "contrary to the public interest" leaving such to the mere "opinion" of the minister of State Security.
These clauses make the commission a mere ministerial department, contrary to the spirit and letter of section 235 of the Constitution. In our country, where the executive has a history of interference with commissions, there is a real danger that the commission will be paralysed by the executive because of such clauses.
The second killer weakness in the Bill is that it completely ignores the victims. There is no reasonable justification that a law, designed to operationalise a commission charged with ensuring post-conflict justice healing and reconciliation, in a country with such rich legacy of violence, totally closes its eyes to the victims and survivors. The commission's primary duties are; healing (section 252 (a)); ensuring that persons subjected to persecution, torture and abuse receive rehabilitation (e); and ensuring that persons affected by conflicts receive assistance (j). These functions clearly identify victims and survivors. And yet the drafters of this law decided to overlook the critical group of people who are supposed to be at the centre of this process. On the other side, the law actually acknowledges and creates possible benefits for perpetrators through section 19 (1) (e) which gives the commission power to make regulations that may provide for the procedure and conditions for the granting of pardon.
Thirdly, the amnesty provision is defective and dangerous. While the Bill uses the word "pardon" in section 19 (1) (e), this in practice is an amnesty clause. Amnesties are prima facie in violation of international law and have been known to promote impunity and recidivism. Zimbabwe's past amnesties have been subject to international condemnation. The African Commission on Human and Peoples' Rights (African Commission) in the case Zimbabwe Human Rights NGO Forum versus Zimbabwe (245/2002) noted that amnesties have a tendency of robbing victims of their access to remedy. In that case, the Clemency Order 1 of 2000 was found to be in violation of the African Charter on Human and People's Rights. If this Bill seeks to make provision for amnesties, then it must put in place mechanisms to avoid abuse of such amnesties. This can be done by giving the powers to grant amnesty to the commission itself following recommendations of technical committee in which victims are represented. It must be worded to ensure that the provisions prioritise the needs of the victims and are not used to promote impunity or reward perpetrators.
This can be done by developing amnesty rules and principles in consultation with victim groups. Measures must be taken to ensure that no amnesty shall be granted for crimes against humanity, war crimes, sexual crimes, crimes that involve the abuse of children, murder and genocide. It must also be made clear that past amnesties must be revoked where beneficiaries committed further crimes after benefitting from past amnesties. Affected victims must have a say in decisions regarding the granting of amnesties. There can be no blanket amnesties.
The fourth killer weakness in the Bill is its deafening silence on gender. No reconciliation process will ever succeed if it ignores 52% of the population. The reconciliation process must take cognisance of the gendered aspects of conflict transformation. The national healing process must call into sharp focus the experiences of women in a period of conflict, the participation of women in conflict and peace processes, the gender dynamics of both men and women, the documentation and memorialisation of such experiences. This discourse goes beyond crimes against women but it brings in the structural and cultural aspects that shape and make such violations possible.
These include the economic systems and power relations that breed and justify gender-based violations and harmful customs.
The National Transitional Justice Working Group (NTJWG) minimum standards make several recommendations on how to ensure that the NPRC effectively mainstreams gender in its work. These include taking deliberate steps to ensure that the NPRC treats gender as both a specific theme as well as a cross cutting issue.
Besides these identified weaknesses, there are many other issues that must be addressed in this Bill. The new Bill must make provision on how the media and the public can access the information from the commission, during and after its work. It must oblige government entities to make sure all information in their custody required by the commission is made readily available in line with section 62 of the Constitution. The Bill must provide for safe archival of the information and material collected by the commission during its operations. It must provide a clear mechanism for the speedy implementation of the recommendations of the commission.
Dzikamai Bere is the co-ordinator of the National Transitional Justice Working Group (NTJWG). For a more detailed analysis of the Bill and other related resources, please visit www.ntjwg.org.zw Comments can be sent to info@ntjwg.org.zw
"The act ignored the transitional justice questions for Zimbabwe, the issues which the commission and the society is not dealing with. The Operation Restore Legacy raises new transitional justice questions which the commission and the society should be seized with.
"Within the NPRC Act there is the lack of victim support, the commission has published a notice with the groups they want to meet when they go for their meetings but victims are not mentioned. So that idea of having invisible victims, stakeholders said it's problematic," explained Bere.
However, stakeholders felt that there are various ares that the NPRC could improve like sensitivity to environment.
They noted that the first press briefing the commission held was at the Munhumutapa Building where the President's office is located and this restricted access of people who may have wanted to participate.
They said this does not inspire confidence in the independence of the commission.
A number of political violence victims voiced out their concerns with regards not being inlcuded in mapping the way forward.
Some said the NPRC has not approached them and is moving too fast without guidelines and would want to help them with legislation so the public can have confidence in them and the conflicts they want to resolve.
Below is Dzikamai Bere's opinion article on "How to kill a peace commission at birth."
The drafters of the National Peace and Reconciliation Bill, HB.2, 2017, (NPRC Bill) will certainly teach the world a few lessons on how to strangle a peace commission right at its birth. They encourage all of us to lose hope in ever building a more peaceful country. This article will highlight the four killer weaknesses of the NPRC Bill, which if not addressed, will condemn the NPRC to certain death, and destroy any hopes of a legitimate national healing process under the current leadership. But first, some background.
On February 10 2017, the government of Zimbabwe gazetted the NPRC Bill to put the National Peace and Reconciliation Commission (NPRC) into operation and related matters. The NPRC is one of the five independent commissions established by Chapter 12 of the Constitution of Zimbabwe. Section 251 specifically establishes the NPRC with the mandate to ensure post-conflict justice, healing and reconciliation. To operationalise the NPRC, there must be a law which provides the legal framework for the NPRC, hence this Bill. This NPRC Bill is the successor to the National Peace and Reconciliation Commission Bill H.B 13, 2015 which was gazetted on December 18 2015 and withdrawn from Parliament in May 2016 following criticism by stakeholders, the public as well as the Parliamentary Legal Committee.
First, the Bill violates section 235 of the Constitution of Zimbabwe which states that independent commissions are independent and not subject to the direction or control of anyone. The Constitution states clearly that no person may interfere with the functioning of the independent commissions. In sharp contrast, the NPRC Bill creates a commission that is subject to the control and manipulation of various individuals and ministers. In at least six clauses, the Bill requires the National Peace and Reconciliation Commission (NPRC) to consult members of the executive in carrying out its duties. For example, the NPRC is required to consult a minister for where to situate its offices. The commission cannot establish its secretariat without consulting the minister. The worst of this executive interference is section 9 (6) which gives the minister of State Security power to stop the public disclosure of information before the commission, if in his "opinion" such information is contrary to public interest.
The Bill's invocation of state security in trying to curtail the work of a commission that is meant to encourage truth-telling regarding the past is a worrying affront to section 252 (c) of the Constitution which mandates the commission to bring about national reconciliation by encouraging people to tell the truth about the past and facilitating the making of amends and the provision of justice. What makes this provision even more dangerous is that it does not even qualify or attempt to define what it deems to be "contrary to the public interest" leaving such to the mere "opinion" of the minister of State Security.
These clauses make the commission a mere ministerial department, contrary to the spirit and letter of section 235 of the Constitution. In our country, where the executive has a history of interference with commissions, there is a real danger that the commission will be paralysed by the executive because of such clauses.
The second killer weakness in the Bill is that it completely ignores the victims. There is no reasonable justification that a law, designed to operationalise a commission charged with ensuring post-conflict justice healing and reconciliation, in a country with such rich legacy of violence, totally closes its eyes to the victims and survivors. The commission's primary duties are; healing (section 252 (a)); ensuring that persons subjected to persecution, torture and abuse receive rehabilitation (e); and ensuring that persons affected by conflicts receive assistance (j). These functions clearly identify victims and survivors. And yet the drafters of this law decided to overlook the critical group of people who are supposed to be at the centre of this process. On the other side, the law actually acknowledges and creates possible benefits for perpetrators through section 19 (1) (e) which gives the commission power to make regulations that may provide for the procedure and conditions for the granting of pardon.
Thirdly, the amnesty provision is defective and dangerous. While the Bill uses the word "pardon" in section 19 (1) (e), this in practice is an amnesty clause. Amnesties are prima facie in violation of international law and have been known to promote impunity and recidivism. Zimbabwe's past amnesties have been subject to international condemnation. The African Commission on Human and Peoples' Rights (African Commission) in the case Zimbabwe Human Rights NGO Forum versus Zimbabwe (245/2002) noted that amnesties have a tendency of robbing victims of their access to remedy. In that case, the Clemency Order 1 of 2000 was found to be in violation of the African Charter on Human and People's Rights. If this Bill seeks to make provision for amnesties, then it must put in place mechanisms to avoid abuse of such amnesties. This can be done by giving the powers to grant amnesty to the commission itself following recommendations of technical committee in which victims are represented. It must be worded to ensure that the provisions prioritise the needs of the victims and are not used to promote impunity or reward perpetrators.
This can be done by developing amnesty rules and principles in consultation with victim groups. Measures must be taken to ensure that no amnesty shall be granted for crimes against humanity, war crimes, sexual crimes, crimes that involve the abuse of children, murder and genocide. It must also be made clear that past amnesties must be revoked where beneficiaries committed further crimes after benefitting from past amnesties. Affected victims must have a say in decisions regarding the granting of amnesties. There can be no blanket amnesties.
The fourth killer weakness in the Bill is its deafening silence on gender. No reconciliation process will ever succeed if it ignores 52% of the population. The reconciliation process must take cognisance of the gendered aspects of conflict transformation. The national healing process must call into sharp focus the experiences of women in a period of conflict, the participation of women in conflict and peace processes, the gender dynamics of both men and women, the documentation and memorialisation of such experiences. This discourse goes beyond crimes against women but it brings in the structural and cultural aspects that shape and make such violations possible.
These include the economic systems and power relations that breed and justify gender-based violations and harmful customs.
The National Transitional Justice Working Group (NTJWG) minimum standards make several recommendations on how to ensure that the NPRC effectively mainstreams gender in its work. These include taking deliberate steps to ensure that the NPRC treats gender as both a specific theme as well as a cross cutting issue.
Besides these identified weaknesses, there are many other issues that must be addressed in this Bill. The new Bill must make provision on how the media and the public can access the information from the commission, during and after its work. It must oblige government entities to make sure all information in their custody required by the commission is made readily available in line with section 62 of the Constitution. The Bill must provide for safe archival of the information and material collected by the commission during its operations. It must provide a clear mechanism for the speedy implementation of the recommendations of the commission.
Dzikamai Bere is the co-ordinator of the National Transitional Justice Working Group (NTJWG). For a more detailed analysis of the Bill and other related resources, please visit www.ntjwg.org.zw Comments can be sent to info@ntjwg.org.zw
Source - Dzikamai Bere
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