The Gender Commission Bill is currently before the National Assembly. It was gazetted on 25 July 2014 and referred to the Portfolio Committee on Women's Affairs, Gender and Community Development. The committee will take the lead in scrutinising the Bill and reporting to the House during the Second Reading stage. Now that the Bill is the public domain, stakeholders can comment on it and engage Parliament to ensure that what is finally enacted satisfies the basic principles of good law. Cognisant of the glaring gender disparities in Zimbabwe, the Constitution provides in section 245 for establishment of the Gender Commission as one of the five independent constitutional Commissions.
The Gender Commission Bill seeks to provide the legal framework for the operations of the Commission by affirming the Constitutional provisions, elaborating on the mandate of the Commission, providing for the secretariat and funding of the Commission and elaborating on the relationship between the Commission and other arms of the state, particularly the Executive and Parliament. The Paris Principles on National Institutions for the Promotion and Protection of Human Rights of 1993 provide comprehensive guidance on the role, function and make up of national human rights institutions and sets forth the primary minimum standards for their effectiveness. Accordingly, the assessment of the Gender Commission Bill will be carried out against the five main criteria of the Paris Principles, namely:
While the mandate of the Commission set out in the Bill reflects the provisions of the Constitution, there is room for clarifying on certain aspects of the mandate which are not clear vis-à-vis other institutions as well as for expanding its functions in order to enhance its effectiveness as a human rights institution. In particular, it is not clear how the Gender Commission is going to relate with the Human Rights Commission for ex ample in the preparation of reports under the agreements that are within its areas of specialty, such as women’s rights or in taking the lead in developing aspects of other reports, which pertain to or have a bearing on gender issues.
The procedure for nomination of commissioners is the responsibility of the Parliamentary Committee on Standing Rules and Orders and the President. The involvement of the parliamentary committee provides an opportunity for the introduction of nomination procedures that will guarantee plurality. However, the Standing Orders of Parliament are silent on the procedure for nomination of Commissioners, save that section 139(3) of the Constitution provides that the procedures and processes of Parliament and its committees as provided for in standing orders must promote transparency, must encourage the involvement of all political parties in Parliament and the public and must be fair and just. There is therefore urgent need to amend the Standing Orders and include provisions for the nomination of commissioners in a fair and just manner as required by the Constitution. The Paris Principles provide that in order for a national human rights body such as the Gender Commission to be effective, it must be independent from the Government and that this independence must be guaranteed by the Constitution and enabling legislation.
While the independence of the Gender Commission from the Government is guaranteed by the Constitution, the Bill is silent on the subject of independence of the Commission. The normative framework of the Bill would have been strengthened by specifically restating the constitutional principles of independence from government. It is submitted that certain aspects of the role of the Minister as provided for in the Bill are in violation of the principle of independence from government. Section 16 of the Bill provides that the Minister may give policy directions to the Commission relating to the exercise by it of its functions as may appear to the Minister to be requisite in the national interest and that the Commission shall, with due expedition, comply with such directions. This provision is a direct affront to the principle of independence of the Commission, and is unconstitutional in my view.
While the noble intentions behind this provision are clear (to safeguard the national interest), the power to issue policy directives opens the door for abuse and undue influence. The Bill should rather provide room for the Minister to engage with the Commission on matters of national interest. The Paris Principles provide that in order to guarantee its independence from government, the Commission should have an infrastructure which is suited to the smooth conduct of its activities. In addition to adequate funding, the Commission should be able to employ its own competent staff and have its own premises. The proviso to section 2 of the Bill provides that the Minister, with the approval of the Public Service Commission, may assign persons employed in his or her Ministry to act as the chief executive officer of the Commission. This action may be taken without resort to the Commission itself. This is problematic in that it poses a threat to the independence of the Commission. This power appears wholly unnecessary and unwarranted. It is submitted that as long as the Commission exists, it should be able to employ its own chief executive like any other institution. Gazetting of the Gender Commission Bill is therefore most welcome. However, the areas highlighted in this article need review in order for the legislation to achieve the desired objective of redressing gender inequality in Zimbabwe.