Zimbabwe Human Rights Commission Act
AN ACT to provide for the procedure of the Zimbabwe Human Rights Commission; to provide for the appointment of the Deputy Chairperson, Executive Secretary and staff of the Commission; and to provide for matters incidental to or connected with the foregoing.WHEREAS sections 242 and 243 of the Constitution provides as follows:242. Establishment and composition of Zimbabwe Human Rights Commission(1) There is a commission to be known as the Zimbabwe Human Rights Commission consisting of—(a) a chairperson appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders; and(b) eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders.(2) The chairperson of the Zimbabwe Human Rights Commission must be a person who has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe.(3) If the appointment of a chairperson to the Zimbabwe Human Rights Commission is not consistent with a recommendation of the Judicial Service Commission, the President must cause the Committee on Standing Rules and Orders to be informed as soon as practicable.(4) Members of the Zimbabwe Human Rights Commission must be chosen for their integrity and their knowledge and understanding of, and experience in, the promotion of human rights.243. Functions of Zimbabwe Human Rights Commission(1) The Zimbabwe Human Rights Commission has the following functions—(a) to promote awareness of and respect for human rights and freedoms at all levels of society;(b) to promote the protection, development and attainment of human rights and freedoms;(c) to monitor, assess and ensure observance of human rights and freedoms;(d) to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;(e) to protect the public against abuse of power and maladministration by State and public institutions and by officers of those institutions;(f) to investigate the conduct of any authority or person, where it is alleged that any of the human rights and freedoms set out in the Declaration of Rights has been violated by that authority or person;(g) to secure appropriate redress, including recommending the prosecution of offenders, where human rights or freedoms have been violated;(h) to direct the Commissioner-General of Police to investigate cases of suspected criminal violations of human rights or freedoms and to report to the Commission on the results of any such investigation;(i) to recommend to Parliament effective measures to promote human rights and freedoms;(j) to conduct research into issues relating to human rights and freedoms and social justice; and(k) to visit and inspect—(i) prisons, places of detention, refugee camps and related facilities; and(ii) places where mentally disordered or intellectually handicapped persons are detained.NOW, THEREFORE, be it enacted by the President and the Parliament of Zimbabwe as follows—
Part I – Preliminary
1. Short title
This Act may be cited as the Zimbabwe Human Rights Commission Act .
In this Act—“authority or person”, in relation to an authority or person against whom or which any complaint of a human rights violation has been made in terms of section 9, means any person, body, organ, agency or institution, whether belonging to or employed by the State, a local authority or otherwise;“Chairperson” means the Chairperson of the Commission appointed in terms of section 242 of the Constitution;“Commission” means the Zimbabwe Human Rights Commission established in terms of section 242 of the Constitution;“Commissioner” means a member of the Commission, and includes the Chairperson;“complaint” means a complaint of a human rights violation made to the Commission in terms of this Act and “complainant shall be construed accordingly;“Committee on Standing Rules and Orders” means the committee referred to in section 57(2) of the Constitution;“Deputy Chairperson” means the Deputy Chairperson of the Commission appointed in terms of section 5(1);“Executive Secretary” means the Executive Secretary of the Commission appointed in terms of section 6(1);“human rights violation” means a violation of—(a)the Declaration of Rights in the Constitution; or(b)any international human rights instrument that Zimbabwe is a party to;“international human rights instrument” means any international treaty, convention, protocol or other agreement to which Zimbabwe is a party and—(a)is required in terms of the Constitution to be approved by Parliament; and(b)provides for any human right that is included in or additional to the Declaration of Rights in the Constitution;“legal representative” means the representative recognised by law of any person who has died, or is an infant or a minor, or of unsound mind, or is otherwise under a disability;“Minister” means the Minister responsible for Justice and Legal Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;“prescribe” means prescribed by regulations made in terms of section 23;“principal officer”, in relation to an authority or person which is a Government Ministry or department or a statutory or corporate body, means the head of the Ministry or department in question, or the chairperson of the governing body or chief executive officer of the statutory or corporate body in question, by whatever title he or she may be called.
Part II – Zimbabwe Human Rights Commission and staff
3. Corporate status of Commission, etc.
(1)The Zimbabwe Human Rights Commission shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform.(2)The First Schedule applies to the tenure of office and conditions of service of the Commissioners as well as to the procedure to be followed by the Commission at its meetings.(3)The Second Schedule sets out the ancillary powers of the Commission.
4. Functions of Commission
In addition to the functions and powers set out in section 243 of the Constitution, the Commission shall have the following functions and powers—
(a)to conduct investigations on its own initiative or on receipt of complaints;(b)to visit and inspect prisons, places of detention, refugee camps and related facilities in order to ascertain the condition under which inmates are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places or facilities;(c)to visit and inspect places where mentally disordered or intellectually handicapped persons are detained under any law in order to ascertain the conditions under which those persons are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places; and(d)to ensure and provide appropriate redress for violations of human rights and for injustice;(e)to co-operate with human rights institutions belonging to international, continental or regional organisations of which Zimbabwe is a member.
5. Deputy Chairperson of Commission
(1)After consulting the Committee on Standing Rules and Orders, the President shall appoint a Deputy Chairperson from among the Commissioners.(2)If the office of the Chairperson is vacant or the Chairperson is absent from duty, the Deputy-Chairperson shall act as Chairperson.
6. Executive Secretary, and other staff of Commission and consultants
(1)The Commission shall—
(a)appoint an Executive Secretary; and(b)employ such other staff as may be necessary for the proper exercise of its functions, and engage consultants where necessary:
Provided that the Commission shall consult the Minister and the Minister responsible for Finance on the extent to which additional public moneys may be required for this purpose.(2)In order for a person to be appointed as Executive Secretary of the Commission, he or she must—
(a)be qualified to be appointed as a judge of the High Court or the Supreme Court; or(b)have a graduate or postgraduate qualification in human rights law or humanitarian law or a related discipline.(3)The offices of the Executive Secretary and other members of staff shall be public offices but not form part of the Public Service.(4)The Executive Secretary shall, subject to the general control of the Commission—
(a)be responsible for carrying out the decisions of the Commission and the day-to-day administration and management of the affairs, staff and property of the Commission; and(b)be the custodian of the Commission’s records; and(c)attend all meetings of the Commission, but shall have no vote on any matter before the Commission; and(d)perform such other functions as may be assigned by the Commission.(5)The Executive Secretary shall swear and subscribe to the oath of secrecy set out in Third Schedule, which shall be administered by the Chairperson.
7. Independence and impartiality of Commission, Commissioners, etc
(1)A Commissioner or a member of staff of the Commission shall serve impartially and independently and exercise or perform his or her functions in good faith and without fear, favour, bias or prejudice and subject only to the Constitution and the law.(2)Neither the State or any person, body, organ, agency or institution belonging to or employed by the State, a local authority or otherwise shall interfere with, hinder or obstruct the Commission, its Commissioners or any member of staff of the Commission, in the exercise or performance of its, his or her functions.(3)The State and any person, body, organ, agency or institution, belonging to or employed by the State, shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission.(4)No person shall conduct an investigation or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary or any other interest which might preclude him or her from exercising or performing his or her functions in a fair, unbiased and proper manner.(5)If any person fails to disclose an interest contemplated in subsection (4) and conducts or renders assistance with regard to an investigation, while having an interest so contemplated in the matter being investigated the Commission may take such steps as it deems necessary to ensure a fair, unbiased and proper investigation.
8. Reports of Commission
(1)The Commission shall no later than sixty days after the end of each financial year submit to the Minister an annual report on its operations and activities during the preceding financial year.(2)In addition, the Commission—
(a)shall submit to the Minister any other report, and provide him or her with any other information, that he or she may require in regard to the operations and activities of the Commission; and(b)may submit to the Minister any other report that it considers desirable.(3)The Minister shall table before Parliament any report submitted to him or her by the Commission under subsections (1) and (2), no later than the thirtieth sitting day of whichever House of Parliament sits first after he or she has received such report.
Part III – Procedure and manner of investigations by Commission
9. Jurisdiction of Commission to conduct investigations
(1)The Commission may on its own initiative investigate any action or omission on the part of any authority or person that constitutes or may constitute a human rights violation.(2)Any person affected by any actual or perceived human rights violation arising out of any action or omission on the part of any authority or person may make a written complaint to the Commission requesting it to investigate such action or omission.(3)When a person by whom a complaint might have been made under this section has died or is for any reason unable to act for himself or herself, the complaint may be made by his or her legal representative or a member of his or her family or such other person as the Commission considers suitable to represent him or her.(4)The Commission shall not investigate a complaint—
(a)unless the complaint is made within three years from the date on which the action or omission occurred:Provided that such investigation shall not relate to an action or omission that occurred earlier than the 13th February, 2009; or(b)where the action or omission complained of is the subject-matter of civil proceedings before any court of competent jurisdiction; or(c)where the action complained of relates to the exercise of the prerogative of mercy; or(d)where the action or omission complained of involves relations or dealings between the Government and a foreign Government, unless there has been an allegation of a human rights violation by a citizen or resident of Zimbabwe.
10. Manner of making complaints
(1)The Commission shall, in regulations prescribe the general manner in which complaints to it should be made, including the particulars required to be completed in a form specified by the Commission in those regulations.(2)The Commission may require a complaint to be supported by such evidence and documentation as it may prescribe or in any particular case.(3)The Commission shall not refuse to investigate a complaint solely on the grounds that the complaint is not in proper form or not in compliance with the prescribed requirements or that it is not accompanied by the required documentation.
11. Refusal to investigate
(1)The Commission shall refuse to investigate any complaint if it is satisfied that it is not authorised in terms of the Constitution and this Act to carry out an investigation.(2)The Commission shall discontinue any investigation if it is satisfied by the evidence received that it is not authorised in terms of the Constitution and this Act to continue the investigation.(3)If the Commission refuses to investigate a complaint or discontinues an investigation it shall, in writing—
(a)inform the complainant and any party complained against of its decision, stating its reasons for the decision; and(b)if appropriate, advise the complainant of any other remedy that appears to it to be available to him or her.
12. Manner of conducting investigations
(1)Subject to subsection (6) (concerning non-disclosure of certain evidence) the Commission may in its discretion conduct an investigation in the form of a public or closed hearing, for which purpose the Commission shall have the following powers—
(a)to issue summons to any authority or person or the principal officer thereof to attend before the Commission and to produce any document or record relevant to any investigation by the Commission; and(b)to put any questions to any authority or person or the principal officer which the Commission considers will assist its investigation of the complaint in question; and(c)to require any person questioned by it to answer such questions and to disclose any information within such person’s knowledge which the Commission considers relevant to any investigation by it; and(d)to request the assistance of the police during an investigation.(2)In conducting a hearing the Commission shall not be bound by the strict rules of evidence, and it may ascertain any relevant fact by any means which it thinks fit and which is not unfair or unjust to any party.(3)The Commission shall afford the authority or person or the principal officer thereof, who is alleged to be responsible for the human rights violation, an adequate opportunity to respond to such allegations.(4)Any person appearing before the Commission may be represented by a legal practitioner.(5)Information obtained by the Commission or any member of its staff at a closed hearing shall not be disclosed to any person except—
(a)without disclosing the identity of any person who gave the information in confidence, for the purposes of the investigation and for any report to be made thereon; or(b)for the purposes of any proceedings for perjury alleged to have been committed in the course of an investigation.(6)The Minister may, at any stage during the investigation of a complaint by the Commission, produce to the Commission a certificate in writing signed by him or her to the effect that the disclosure of any evidence or documentation or class of evidence or documentation specified in the certificate is, in his or her opinion, contrary to the public interest on the grounds that it may prejudice the defence, external relations, internal security or economic interests of the State, whereupon the Commission shall make arrangements for evidence relating to that matter to be heard in camera at a closed hearing and shall take such other action as may be necessary or expedient to prevent the disclosure of that matter.(7)Upon receipt of a certificate in terms of subsection (6)—
(a)the Commission or any member of the staff of the Commission shall not communicate any such evidence or documentation to any other person for any purpose, unless the Minister allows the Commission to do so, subject to such conditions as he or she may fix; and(b)an aggrieved person may, in accordance with the Administrative Justice Act (No. 24 of 2004), appeal against such certificate, and the court hearing the appeal shall treat any evidence or documentation subject to the certificate in the manner specified in section 8 (“Discretion to refuse or to restrict supply of reasons”) of the Administrative Justice Act (No. 24 of 2004).(8)Any person who—
(a)has been summoned by the Commission to give evidence or to produce any documentation for the purposes of an investigation and who fails to attend or to remain in attendance until excused by the Commission from further attendance, or refuses without sufficient cause, the onus of proof whereof lies upon him or her, to be sworn as a witness or to answer fully and satisfactorily a question lawfully put to him or her, or to produce the evidence or documentation requested; or(b)gives false evidence to the Commissioners, knowing such evidence to be false or not knowing or believing it to be true;
shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.(9)For the avoidance of doubt it is declared that the law relating to the competence or compellability of any person on the grounds of privilege to give evidence, answer any questions or produce any book or document before the Commission, shall apply.(10)Any Commissioner or member of staff who without being authorised to do so by the Commission, discloses any information, evidence or documentation referred to in subsection (5) or (6), or makes any use of such information for his or her benefit, shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
13. Conflict of interest
(1)No Commissioner shall participate in a hearing of a human rights violation or have a vote on any question before the Commission, whether or not involving any human rights violation, in which the Commissioner is aware that he or she has direct or indirect interest that may conflict with his or her functions as a Commissioner.(2)A Commissioner who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
14. Proceedings after investigation
(1)If, after conducting an investigation, the Commission is of the opinion that the action or omission which was the subject-matter of the investigation constitutes a human rights violation and that—
(a)the action or omission relates to any decision or practice on the part of any person or authority which needs to be abolished, cancelled, reversed, varied or altered; or(b)the issue giving rise to the complaint should be given further consideration by the person or authority against whom or which the complaint was made; or(c)the action or omission should be rectified; or(d)any law on which the act or omission was based should be reconsidered; or(e)reasons should have been given for any decision complained against; or(f)any other steps should be taken in relation to the action or omission complained against;
the Commission shall report its opinion, together with its reasons, to the authority or person against whom the complaint was made and may make such recommendations as it thinks fit and shall also send a copy of its report and recommendations to the Minister.(2)In particular, the Commission may, where it considers it necessary, recommend—
(a)the release of a person from prison; or(b)the payment of compensation to a victim of a human rights violation, or to such victim’s family; or(c)that the complainant seek redress in a court of law.(3)The Commission may request the authority or person in relation to whom or which it made any recommendation to notify it, within a specified time, of the steps, if any, that it proposes to take to give effect to its recommendation.(4)If, within a reasonable time after a report is made in terms of subsection (1), no action is taken which, in the opinion of the Commission, is adequate and appropriate, the Commission may, if it thinks fit after considering the comments, if any, made by or on behalf of any authority or person affected, submit a special report on the case to the Minister for the Minister to present to the President and lay before Parliament.
15. Commission may institute actions for redress of human rights violations
(1)The Commission may, if it thinks fit, where it has completed an investigation of any human rights violation—
(a)on its own initiative in terms of section 9(1); or(b)on the basis of a complaint;
in its own name or on behalf of any complainant or class of complainants pursue any action in any court of competent jurisdiction for the redress of any human rights violation, for which purpose it shall, where it acts on the basis a complaint, be cited as a joint party with the complainant or class of complainants in question.(2)Where the Commission institutes any action against the State or any authority or person belonging to or employed by the State, the provisions of the State Liabilities Act shall apply to such action.
16. Commission may state case for High Court
(1)If any question arises as to whether the Commission has jurisdiction to initiate, continue or discontinue an investigation or to exercise powers in connection therewith, the Commission may state a special case on the question for the decision of the High Court.(2)In any case so stated the Commission shall state—
(a)the facts which it has established; and(b)the view of the law which it proposes to adopt in relation to the facts.(3)Any expenses incurred by the Commission in the determination of any question referred to in subsection (1) shall be met from the funds of the Commission.
Part IV – Financial provisions
17. Funds of Commission
(1)The funds of the Commission shall consist of—
(a)moneys appropriated by Act of Parliament for the salaries and allowances payable to and in respect of members of the Commission and the recurrent administrative expenses of the Commission; and(b)any other moneys that may be payable to the Commission from moneys appropriated for the purpose by Act of Parliament; and(c)any donations, grants, bequests or loans made by any person or organisation or any government of any country to the Commission with the approval of the Minister; and(d)any other moneys that may vest in or accrue to the Commission, whether in terms of this Act or otherwise.(2)The Commission shall apply its funds to the fulfilment of its functions.(3)Moneys not immediately required by the Commission may be invested in such a manner as the Commission, with the approval of the Minister and the Minister responsible for finance, considers appropriate.
18. Accounts of Commission and appointment of internal auditor
(1)The Commission shall ensure that proper accounts and other records relating to such accounts are kept in respect of all the Commission’s activities, funds and property, including such particular accounts and records as the Minister may direct.(2)As soon as possible after the end of each financial year, the Commission shall prepare and submit to the Minister a statement of accounts in respect of that financial year or in respect of such other period as the Minister may direct.(3)Section 80 of the Public Finance Management Act (No. 11 of 2009), shall apply, with such changes as may be necessary, to the appointment of an internal auditor to the Commission in all respects as if the Commission were a Ministry or department of a Ministry.
19. Audit of Accounts
(1)The accounts of the Commission shall be audited by the Comptroller and Auditor-General, who for that purpose shall have the functions conferred on him or her by sections 7 and 8 of the Audit Office Act (No. 12 of 2009).(2)Any person under the authority or supervision of the Commission who refuses to provide the Auditor-General with an explanation or information required by him or her for the purposes of an audit or knowingly provides the Comptroller and Auditor-General with a false explanation or information, or an explanation or information that the person has no grounds for believing to be true, shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.(3)Notwithstanding anything contained in subsection (1), the Auditor-General may appoint a suitably qualified person to audit the accounts of the Commission and if he or she does so—
(a)subsections (1) and (2) shall apply in respect of the person so appointed as if he or she were the Auditor-General; and(b)any expenses incurred by the person so appointed in carrying out his or her audit shall be met from the funds of the Commission.
Part V – Miscellaneous provisions
20. Removal of Commissioner from office
(1)A Commissioner may be removed from office for inability to discharge the functions of his or her office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour, and shall not be so removed except in accordance with this Act.(2)A Commissioner shall be removed from office by the President if the question of his or her removal from office has been referred to a tribunal appointed under subsection (4) and that tribunal has advised the President that he or she ought to be removed from office for inability to discharge the functions of his or her office or for misbehaviour.(3)If the question of removing a Commissioner has been referred to a tribunal appointed under subsection (4), the President may suspend that person from performing the functions of his or her office and any such suspension—
(a)may at any time be revoked by the President; and(b)shall cease to have effect if the tribunal advises the President that the person should not be removed.(4)The tribunal referred to in this section shall consist of a chairperson and two other members appointed by the President, and—
(a)the chairperson shall be a person who is or has been a judge of the Supreme Court or the High Court;(b)at least one of the other members shall be a person who is and has been for not less than seven years, whether continuously or not, qualified to practise as a legal practitioner in Zimbabwe.(5)In computing, for the purposes of subsection (4)(b), the period during which any person has been qualified to practise as a legal practitioner, any period during which he or she was qualified to practise as an advocate or attorney in Zimbabwe shall be included.
No legal proceedings shall lie against the Commission or any Commissioner or the Executive Secretary or any person acting under the direction of the Commission in respect of anything which is done in good faith and without gross negligence in pursuance of this Act.
22. Provincial, district and other offices of Commission
The Commission shall endeavour to establish a principal office and offices at provincial, district and other administrative levels as it considers fit for the better performance of its functions.
(1)The Commission may make regulations—
(a)prescribing anything which by this Act and its Constitutional mandate is required or permitted to be prescribed or which, in its opinion, is necessary or convenient to be prescribed for the carrying out or giving effect to this Act; and(b)providing for the conditions of service of the Executive Secretary and the staff of the Commission.(2)The regulations of the Commission shall not have effect until they have been approved by the Minister and published in the Gazette.