Report On The Gender Commission Bill Public Hearings


INTRODUCTION
Pursuant to the provisions of Section 141 of the Constitution, the Portfolio Committee on Women’s Affairs, Gender and Community Development and the Thematic Committee on Gender Development jointly conducted public hearings on the Zimbabwe Gender Commission Bill currently before Parliament. The public hearings were conducted in Mutare, Masvingo, Bulawayo Gweru and Harare on 27 April to 4 May 2015. 

Public Participation 
Public attendance started on a low key in Mutare with 31 participants but picked up to 298 participants in Bulawayo. Whereas participants in other centres attended the public hearings either as individuals or representatives of organizations, those that attended the Harare public hearing were purely representatives of civic society organizations. Statistics on public attendance in all the five centres are as indicated in the table below.

Province Venue No. of Female Participants No. of Male Participants  Total No. of Participants
Manicaland Mutare Civic Centre 17 14 31
Masvingo Masvingo Civic Centre 113 49 162
Bulawayo Small City Hall 253 45 298
Midlands Gweru Civic Centre 24 29 53
Harare Parliament Senate Chamber 10 6 16

 

 As shown in the table above, it was pleasing to note that this time the majority of participants in all the five mentioned above were women. There was also a good attendance of people living with disabilities in all the centres where these public hearings were conducted; a departure from the previous public hearing. However, participants raised concerns regarding inadequate publicity of the public hearings, the choice of venues and lack of civic education on the contents of the Bill. They urged Parliament to make use of local government structures to disseminate information on public hearings. They also bemoaned the fact that most of the public hearings were usually confined to urban centres leaving out rural areas when the larger population lives. The issue of language was also cited by participants as one of the major factors that constrain active public participation in such programmes as public hearings. Parliament was urged to translate Bills into local languages and also to produce the Bills in Braille to ensure the inclusive participation of all citizens in line with the provision of the Constitution. Participants also urged Parliament and Civic Society Organizations to conduct civic education on draft legislation prior to the holding of these public hearings so that citizens were able to contribute meaningfully. 

Members of the public took Parliament to task for failure to give feedback after consulting them; on whether or not their views were incorporated the legislation. They suggested that Parliament should come up with a feedback mechanism so that the public can effectively track their input.

Below is a brief summary of key points raised by the public on the substance of the provisions of the Bill. 

Definition and Interpretation of Terms
Participants recommended a comprehensive and inclusive Interpretation Clause of the Bill where terms such as "gender", "sex" "gender mainstreaming", "gender analysis", "gender equity", "gender equality", "gender sensitive” etc were clearly defined in the Bill to ensure that the intended objectives of the policy were not misunderstood. It was noted that some of the above-mentioned terms were sometimes usually used loosely and they have acquired new social meanings or interpretations. It was noted, for instance, that the word "gender" in Zimbabwe has become synonymous with the word, “women”. Participants, therefore, said the definition of the term “gender” in the interpretation clause of the Bill should be widened so as to include interests of men, youths, and people living with disabilities etc as well. The Bill should dispel the notion that gender only refers to issues that affect women only but different biological and social circumstances of both men and women. A suggestion was made that the definition of the above-mentioned terms should be guided by the Zimbabwe Gender Policy and the SADC Protocol on Gender and Development as the two documents have comprehensively defined the terms.

Some participants also suggested an insertion of a new Clause on the Bill; “Guiding Principles”. They said this would guide the Commissioners in the implementation of the law.

Independence of the Commission
The need to have a truly independent Commission featured prominently in all the centres the Committee visited. Participants strongly felt that the Bill in its current form did not fully guarantee the independence of the proposed Gender Commission given the role assigned to the Minister of Gender in the affairs of the Commission. In order to safeguard the independence of the Commission, participants felt that provisions of Section 235 of the Constitution should be re-stated in the Bill. Regarding the requirement to report to the Minister, participants said the Commission should report directly to Parliament and be accountable to Parliament instead as provided for in Section 235 of the Constitution. They argued that by reporting to the Minister, there was a potential danger that the Commission’s report will be doctored and toned down if the Minister was not happy with some of the findings. 

Participants were also against the involvement of the Minister in the recruitment of the Commission’s secretariat (Chief Executive Office) as stated in the Bill. They said the Commission should be allowed to recruit its staff on its own in line with the provisions of Section 234 of the Constitution. Similarly, participants were strongly opposed to the President appointing the Chairperson and Deputy Chairperson of the Commission as provided in the Bill. They argued that this will compromise the independence and impartiality of the Commission. Hence they argued that the Commissioners should be allowed to elect their own Chairperson and Deputy Chairperson among themselves. 

Funding 
Also to ensure total independence of the Commission, some participants said that the Commission should have a stand-alone vote in the National Budget not an allocation under the Ministry of Women’s Affairs. The Commission should be fully in charge of its funds. Some participants were opposed to the provision of the Bill that allowed the Commission to receive donations from the donor community as they felt that this would expose the Commission to external influences and interests. Some participants were also opposed to the clause of the Bill that allowed the Commission to raise funds by charging fees for some of its services. They said this would make it difficult for poor people to access the services of the Commission.

Functions of the Commission
Others were of the view that the functions and operations of the Commission should be decentralized to the lowest levels of government structures to ensure easy access by poor people at the grassroots in line with the devolution policy as provided for in Section 264 of the Constitution. It was also submitted that the functions of the Commission should include civic education on gender issues as well as its mandate and operations. Some participants said there was a need to clearly streamline the functions of the Zimbabwe Gender Commission in order to eliminate duplication of functions with the Ministry of Women’s Affairs and other gender-related institutions that are already in existence.

Investigative Powers and Procedures
Some participants were of the view that the Commission should be given arresting and prosecuting powers to ensure its effectiveness.  

It was noted that the Bill was silent on whether or not the Commission would have powers to issue summons in the course of conducting its investigations. It was also not clear how the Commission would deal with what it deemed false evidence. Would the Commission have power to declare giving of false evidence a criminal offence? This needs to be clarified in the Bill.

Annual Gender Forums
Participants said the proposed annual Gender Forum should be cascaded to the grassroots not just be a national event as currently sated in the Bill. It was also felt that these Gender Forums should not be annual events but rather periodic events so as to allow regular interaction between the Commission and citizens. Participants also sought clarity on the “credentials” required for one to attend the annual Gender Forums as this was not defined in the Bill. The fear was that this requirement may be used to deny some citizens from participating at the Gender Forums.

Composition of the Commission
Participants said the Bill should provide for the representation of the ethnic, cultural, social, political and economic diversity of the nation in the composition the Zimbabwe Gender Commission in line with the Constitution. People living with disabilities in particular advocated for representation in the Commission. They argued that, otherwise, the Commission risked being an elitist institution that did not serve the interests of ordinary citizens. 

Tenure of Office
It was felt that the Constitution has adequately spelt out the tenure of office of Commissioners including their qualifications and disqualifications. The Bill, therefore, should not go beyond what has already been provided for in the Constitution as this would be unconstitutional. 

PROPOSED OF AMENDMENTS
Below is a set of proposed amendments arising from the public input as discussed in the narrative report above.

1. Correction: Preamble:

At Page 5 line 6, delete “section” and insert after “WHEREAS” the following words: “sections 245, 246 and 247”. 

2. In Clause 3: 

As appointments are provided by the Constitution, there is no need for repetition of the provisions here. The Constitution refers to a “deputy chairperson”, not a “vice-chairperson” as the clause does. Any references to a “vice-chairperson” must therefore be deleted and replaced by “deputy chairperson.”  Clause 3 should be amended as follows:

-by the deletion of Clause 3(1);

-in Sub-clause 3(2): by the deletion of the sub-clause

-In sub-clause 3(3): by deletion of “vice-chairperson” wherever it occurs and substituting it with “deputy chairperson”

-In sub-clause (4): By the deletion of the qualifications in the sub-clause and replacement with the following: “the qualifications of members shall be as specified in the First Schedule”
(The Schedule cannot contain more qualifications than are provided in the Constitution-see section 320 of the Constitution on qualifications)

3. In Clause 4:

While it is permissible to give additional functions to a commission by an Act of Parliament, these functions must be read together with the language used in the Constitution. Clause 4(1)(c ) of Clause 4 attempts to go beyond what was intended by section 321(1) of the Constitution by conferring on the Commission under “any other enactment.” This appears too wide. The following amendment is thus proposed:

 On page 6 of the Bill, in lines 2-3:In Clause 4 (1)(c ): by the deletion of sub-clause (1) ( c)

4. In Clause 5:

Section 246 of the Constitution empowers the Commission to conduct both formal and not so formal enquiries/investigations. Clause 5 must provide for the conduct of non-formal investigations. It should be amended thus:

On page 6 of the Bill in Clause 5 after line 12 by the insertion of sub-clause (2) providing: The Commission may conduct non-formal investigations into complaints of gender discrimination, and may develop rules of procedure for the conduct of such investigations

5. In Clause 7:

The Clause should oblige the Minister to lay a report presented to him/her by the Commission before Parliament. It should be amended to include a sub-clause (2):

On page 8 on line 7: insert (2) The Minister shall lay the report referred to in subsection (1) of Section 7 forthwith before Parliament.

6. In Clause 8 and 9:

To ensure that the Gender Forums feed into the national discourse, their conclusions must be laid before Parliament.  Clause 8 should be amended thus: 

On page 9 in Clause 9 by the addition of sub-clause (5) after line 12 thus: (5) A report containing observations and conclusions of a Gender Forum shall be laid before Parliament within one month of the Forum by the Minister.

7. In Clause 10:

Section 234 provides that independent Commissions have power to employ their staff. This Clause obliges the Commission to consult the Minister and additionally obliges the Commission to seek the Minister’s authority before engaging a non-Zimbabwean citizen. It is ultra vires the Constitution, and is inconsistent with the Paris Principles. The requirement to consult the Minister must be removed.

On page 9, in Clause 10 sub-clause (1) lines 18-19, by the deletion of the words ”in consultation with the Minister”

On page 9 lines 23-24 (the proviso) by the addition of the words, “with the agreement of the Commission” after “Minister”

In Clause 10 sub-clause (2) lines 25-28, by the deletion of the sub-clause (2)

8. In Clause 11:

Section 234 empowers the Commission to employ its staff. Attempts to empower the Minister to exercise a controlling role over the Commission do not enjoy constitutional protection. The clause should be accordingly amended thus:

On page 10 lines 4-5, by the deletion of the words “in consultation with the Minister and the Minister responsible for finance”

9. In Clause 16:

Section 235 of the Constitution provides that independent commissions are not subject to the direction or control of anyone. Clause 16 gives the Minister power to give directions to the Commission. This clause has no constitutional basis, is outright unconstitutional and flies in the face of the Paris Principles. The Bill must be amended as follows:

On page 11 in lines 40-45, and on page 12 in lines 1-3, Clause 16 is deleted.

 

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