Previously there was a separate institution called the Public Protector to which members of the public could bring their complaints of maladministration for investigation and redress by that body. The Public Protector Office investigated complaints by citizens that they had suffered injustice as a result of unjust or oppressive administrative action by various administrative officials. The Public Protector was empowered to investigate action taken by:
- any Ministry or department of Government and any member of such Ministry or department;
- any local authority;
- any hospital, clinic, school or training institute controlled directly or indirectly by the State;
- any statutory body;
- any authority empowered to determine the person with whom any contract or class of contracts is to be entered into by or on behalf of the State.
The Public Protector would take remedial steps where, after investigating the complaint it found that there has been–
- action contrary to the law;
- action based wholly or partly on mistake of law or fact;
- unreasonably delayed action; or
- action otherwise unjust or manifestly unreasonable;
and it considers that–
- the matter should be given further consideration; or
- an omission should be rectified; or
- a decision should be cancelled, reversed or varied; or
- any practice on which the act, omission, decision or recommendation was based should be altered; or
- any law on which the act, omission, decision or recommendation was based should be reconsidered; or
- reasons should have been given for the decision; or
- any other steps should be taken.
However, the Public Protector Act was repealed. Section 16 of Part 4 of the Sixth Schedule to the 2013 Constitution of Zimbabwe provides as follows:
16. (1) The Public Protector Act [Chapter 10:18] is repealed.
(2) Any matter that was being dealt with by the Public Protector immediately before the effective date must be transferred to the Zimbabwe Human Rights Commission for finalisation.
The Constitution in section 243(1)(e) now provides that one of the functions of the Zimbabwe Human Rights Commission is to protect the public against abuse of power and maladministration by State and public institutions and by officers of those institutions.
Thus all the functions previously exercised by the office of the Public Protector are now exercised by the Zimbabwe Human Rights Commission.
It is debatable whether it was advisable to abolish the office of the Public Protector and give all of its functions to the Human Rights Commission. The Zimbabwe Human Rights Commission will probably struggle to deal not only with “ordinary” human rights cases, without having the huge additional task of dealing with cases of bureaucratic injustice. It should be pointed out, however, the 2013 Constitution does expressly guarantee the right to administrative justice and this right has thus been brought within the mainstream of fundamental rights in the Bill of Rights. In this sense, the Human Rights Commission is perhaps the correct agency to deal with violations of this right.
Complaints about maladministration will now be dealt with under Part III of the Zimbabwe Human Rights Commission Act [Chapter 10:30].
The Commission may on its own initiative investigate actions or omissions by any authority or person that may constitute a human rights violation and a person affected by a human rights violation may make a written complaint to the Commission requesting the Commission to investigate the matter. An authority or person means any person, body, organ, agency or institution, whether belonging to or employed by the State, a local authority or otherwise.
The complaint of a human rights violation must be made within three years of the date when the act or omission occurred and the Commission will not deal with a complaint where the action or omission complained of is the subject-matter of civil proceedings before any court of competent jurisdiction.
The form and manner of making a complaint are prescribed in the Zimbabwe Human Rights Commission (General) Regulations, 2016 (Statutory Instrument 77 of 2016.)
The manner of investigation of complaints is provided for in section 12 of the Act.
In terms of section 14, if after investigation, the Commission decides that there has been a human rights violation and that:
- 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
- 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
- the action or omission should be rectified; or
- any law on which the act or omission was based should be reconsidered; or
- reasons should have been given for any decision complained against; or
- any other steps should be taken in relation to the action or omission complained against;
the Commission must 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 must also send a copy of its report and recommendations to the Minister.
In particular, the Commission may, where it considers it necessary, recommend—
- the release of a person from prison; or
- the payment of compensation to a victim of a human rights violation, or to such victim’s family; or
- that the complainant seek redress in a court of law.
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.
If, within a reasonable time after a report is made to an authority, 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.
Under section 15 of the Act where the Commission has completed an investigation of any human rights violation on its own initiative or of a complaint basis of a complaint the Commission may, if it thinks fit, 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.
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 will apply to such action.
Part IV of the Zimbabwe Human Rights Commission (General) Regulations, 2016 (Statutory Instrument 77 of 2016.) makes provision for resolution of complaints through negotiation, conciliation or mediation.
Citizens aggrieved as a result of practices that amount to maladministration can obviously seek redress by complaining directly to various government or local government departments or to their members of Parliament or to party officials.
There are also other mechanisms for complaint such as making complaints to the Commissioner of Police in respect of malpractices on the part of members of the police force.