REPORT OF THE
JOINT PORTFOLIO COMMITTEE ON WOMEN AFFAIRS GENDER AND COMMUNITY DEVELOPMNENT AND THE THEMATIC COMMITTEE ON GENDER AND DEVELOPMENT
GENDER COMMISSION BILL
SECOND SESSION; EIGTH PARLIAMENT
PRESENTED TO PARLIAMENT ON 21 MAY 2015
ORDERED IN TERMS OF STANDING ORDER No. 159:
- At the commencement of every session, there shall be as many committees to be designated according to government portfolios to as the Standing Rules and Orders Committee may deem fit.
- It shall be the function of such committees to examine expenditure administration and policy of government departments and other matters falling under their jurisdictions as Parliament may, by resolution determine
- The members of such committees shall be appointed by the Standing Rules and Orders Committee, from one or both Houses of Parliament, and such appointments shall take into account the expressed interests or expertise of the Members and Senators and the political and gender composition of Parliament.
- Each select committee shall be known by the portfolio determined for it by the Standing Rules and Orders Committee.
TERMS OF REFERENCE OF PORTFOLIO COMMITTEES S.O 160
Subject to these Standing Orders a Portfolio Committee shall:
- Consider and deal with all Bills and Statutory Instruments or other matters which are referred to it by or under a resolution of the House or by the Speaker;
- Consider or deal with an appropriation or money bill or any aspect of an appropriation or money bill referred to it by these Standing Orders or by or under resolution of this House;
- Monitor, investigate, inquire into and make recommendations relating to any aspect of the legislative programme, budget, rationalization, policy formulation or any other matter it may consider relevant of the government department falling within the category of affairs assigned to it, and may for that purpose consult and liaise with such a department;
- Consider or deal with all international treaties, conventions and agreements relevant to it, which are from time to time negotiated, entered into or agreed upon.
On the 25th of July 2014, the Zimbabwe Gender Commission Bill was gazetted. In accordance with Section 141 of the Constitution which provides for “public access to and involvement in Parliament”, the joint Committees conducted public hearings and oral evidence sessions as a strategy to gather views from the public regarding the Gender Commission Bill. A number of Civil Society Organizations made their submissions to the two committees as part and parcel of the evidence gathering process. From the 26th of April to the 4th of May, 2015, the two Committees of Parliament conducted public hearing exercise in the major cities (Mutare, Masvingo, Bulawayo, Gweru and Harare) of the country. This report combines the submissions made by Civil Society Organizations to the two committees and contributions from various stakeholders gathered during the public hearing exercise. The report provides the committees major observations, conclusion and recommendations.
During the inquiry, the joint committees were being guided by the following objectives:
- To afford the public an opportunity to directly contribute in the parliamentary role of law making process.
- To gather the views and opinions of the various stakeholders on the Zimbabwe Gender Commission Bill and ensure these views are debated upon and considered in the final draft of the bill.
- To assess the Gender Commission Bill’s conformity with the provisions of the Constitution.
The joint Committees of Parliament gathered evidence through oral hearings, document submissions and public hearings in the major cities of Zimbabwe. The Ministry of Women Affairs, Gender and Community Development briefed the two Committees on the provisions of the bill. Eight (8) civil society organization made their submissions to the two committees: viz Women Coalition of Zimbabwe; Women and Law in Southern Africa (WILSA); Zimbabwe Women Lawyers Association (ZWLA); Zimbabwe Women Resource Center and Network (ZWRCN); Humanitarian Information Center (HIFC); PRWEB, and Zimbabwe Lawyers for Human Rights (ZLHR). In addition, from April 26 to May 4, 2015, the two Committees of Parliament conducted public hearing exercise in Mutare (27 April 2015); Masvingo (28 April 2015); Bulawayo (29 April 2015); Gweru (30 April 2015); and Harare (4 May 2015).
Gender inequality has persisted in Zimbabwe despite the country being a signatory to gender sensitive instruments such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the SADC Protocol on Gender and Development. Concern remains on the following violations of women’s human rights in Zimbabwe: violence against women; under-representation in political life; and inadequate access to health services among others. It is in this regard that for a long time there has been a broad clarion call by relevant government departments and civil society organizations for the establishment of a Zimbabwe Gender Commission. Pursuant to this demand, Section 245 of the Constitution provides the establishment and composition of Zimbabwe Gender Commission.
Subsequently, on the 25th of July 2014, the Minister responsible for the Ministry of Women Affairs, Gender and Community Development gazetted the Zimbabwe Gender Commission Bill. The Gender Commission Bill has come at the right time after there has been repeated calls for the alignment of all laws with the new constitution. The bill, among other things, seeks to fulfill international and regional instruments that Zimbabwe is a party to, namely the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Beijing Declaration and Platform for Action. The eventual creation of this Commission through this bill will be a milestone development towards the attainment of gender equality and women representation in all sectors. The Commission will be instrumental in the enforcement of gender laws. Section 246 of the Constitution provides for the functions of Zimbabwe Gender Commission, namely: to monitor issues concerning gender equality; to investigate possible violations of rights relating to gender; to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate; to conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender; to advise public and private institutions on steps to be taken to ensure gender equality.
The main challenge in Zimbabwe has been that there has been many gender laws that have not been fully implemented. The Commission will ensure the full implementation of these pieces of legislation. These 17 pieces of legislation to advance the gender equality and equity objective include Matrimonial Causes Act (1987); Maintenance Act (1999); Administration of Estate Act (1997); Maintenance Act (1999); Sexual Offences Act (2001), Education Act (2004), Labour Act, [Chapter 28:01]; Criminal Law Act (2006); Domestic Violence Act (2007). The 2004 Public Sector Gender Policy put in place Gender Focal Points in all Ministries and parastatals and in 2012 dialogue was initiated to set up a Gender Commission.
In addition, Section 141 (b) of the Constitution states that Parliament must: “ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable”. Hence, the Joint Portfolio Committee on Women Affairs, Gender and Community Development and the Thematic Committee on Gender and Development resolved to facilitate stakeholders’ contribution towards the provisions of the bill through public hearings. The two Committees made broad consultations on the Gender Commission Bill.
- 0 Submissions by Stakeholders and Observations by the Committees
The Zimbabwe Gender Commission Bill contains very strong and good gender sensitive provisions. However, submissions made to the joint Committees by both Civil Society Organizations and during the public hearings indicated that there is need first, to fine tune some of the provisions, particularly pertaining powers of the Minister. Secondly, concerns were raised on the need to strengthen provisions on independence of the Commission, and thirdly, broadening sections to do with definition of terms and acknowledgements of some provisions of the Constitution and regional and international instruments to which Zimbabwe is a signatory.
5.1 The preamble
During oral submissions by civil society organizations and public hearings in Mutare, Masvingo, Bulawayo, Gweru and Harare, participants registered their concerns that the Preamble section of the Bill is rather narrow since it does not even state clearly the significance of the Gender Commission. The current preamble only refers to Section 245 of the Constitution. Participants during public hearings mentioned that reference should be broadened to include other sections of the Constitution, such as founding values as well as international and regional gender instruments. Participants also indicated to the two committees that the Bill does not have a comprehensive reference and or acknowledgements of the provisions in the Constitution that endorse gender equality.
5.2 Interpretation Section
Participants raised concerns regarding the interpretation section of the Bill. They noted that the term gender is not fully understood by many people in our society. Yet the only term related to gender that is defined in the interpretation section of the Bill is “systemic barrier”. The term gender itself is not defined as well as other significant concepts that are vital in understanding gender, such as sex, gender mainstreaming, gender balance, gender equality, gender equity, gender discrimination among others.
5.3 The Composition of the Gender Commission
During public hearings various civil society organizations, including representatives of people with disabilities, the Zimbabwe Disability and Inclusive Forum, the National Association of Societies for the Individuals Living with Disabilities made it clear that they constitute more than 10% of the total population, and as such they were of the opinion that the Gender Commission should include a representative from people with disabilities. The need for the inclusion of the disability representative in the Commission was mentioned in all cities the two committees conducted public hearings (Mutare, Masvingo, Bulawayo, Gweru and Harare).
Church representatives such as the Zimbabwe Council of Churches also noted that there is a surge of women violation in churches. This was mentioned particularly in Masvingo, and the view of participants in the public hearing was that, to address that challenge, there was need to enlarge the Gender Commission composition so as to allow representation of the churches.
Your Committees were also informed during public hearings that the Bill does not have youth representation. It was the view of participants during public hearings that the inclusion of the youth representatives in the Gender Commission should be considered to bring on board gender issues pertaining to the youths, who often suffer gender related challenges, in silence, especially the girl child.
The Committees were informed by participants during public hearings that the odd 9 members of Commissioners, has high potential of promoting gender imbalances, against women and vulnerable groups such as the disabled and the youths. Additionally, participants in the public hearings further mentioned that the mere fact that the composition of the Commission demands for one traditional Chief is discriminatory since this will not cater for both female and male Chiefs in Zimbabwe. On that note, the Committee was informed by participants during public hearings that there is therefore need for the Commission to be decentralized throughout the country’s ten provinces and districts in its operations, in order to give room for full representation of all key stakeholders.
5.4 Independence of the Commission
In virtually all cities, (Mutare, Masvingo, Gweru, Bulawayo and Harare), participants raised concerns about the apparent lack of independence of the Commission. In particular, the selection process of members of the board of the Commission was said not to be transparent. The requirement that the President will nominate the Chair and Vice Chair of the board of the Commission was viewed with mistrust by participants who expressed their fears that this will compromise the impartiality of the board of the Commission.
Concerning board members, participants observed that the Bill does not make it clear whether the Commissioners are going to be part time or full time.
Powers of the Minister were considered to be too much. Participants were opposed to the provisions of the Bill that the Minister should be consulted in the appointment of the Chief Executive Officer of the board, as well as that the Minister has powers to fix the terms and conditions of office of board members of the Commission (Section 10 and 11 of the Bill). Participants were of the view that if the Minister is to be allowed to influence the appointment of the Chief Executive Officer and fix conditions of service of the board, there would be a risk that the Commission will be turned into a mere extension of the Ministry of Women Affairs, Gender and Community Development.
Submissions by various civil society organizations noted that the Bill does not reflect the Commission’s independence in its operations. The functions and operations of the Commission seem to be embedded in the Ministry of Women Affairs, Gender and Community Development such as the manner of conducting investigations (clause6). The role of the Ministry in the appointment of the Chief Executive Officer (clause 10) and giving policy direction to the Commission (clause 16) overlaps the aforementioned independence of the Commission as stipulated in Section 235 of the Constitution.
5.5 Funding of the Gender Commission.
The public noted that funding should come solely from the government as a strategy to retain the independence of the Commission. The public expressed fears with the donations from prominent donors who can compromise the Commission’s operations. In addition, the public observed that the Commission should be empowered to reject donations that may compromise their operations and independence. Therefore, major funding was proposed to come from Treasury with donors playing only a complimentary role.
5.6 Investigative Function of the Commission
The submissions by civil society organizations noted that there is no provision for investigations of a less formal type. As the conduct of less formal investigations is authorized by Section 246(b) of the Constitution, the Bill should at least make it clear that the provisions of Part 111 do not rule out other sorts of investigations if the Commission considers them to be admissible subject to due observance of principles of fairness. Hence, there were arguments for the provision of informal investigation. The general view of the public was that over and above the investigative function with the assistance of police the Commission should compel the police to arrest in accordance with their investigation.
5.7 Report and Recommendations to the Minister after Investigation.
Submissions by various civil society organizations argued that the section should be renamed, “Report and Recommendations after Investigation” Secondly it was articulated that the Commission’s reports should be made public and should also include the steps the Commission can take in the absence of a remedy. It was also noted that the Commission may (using the language of Section 7e in the current draft Bill) take up a class action under the Class Actions Act [Chapter 8:17} (No. 10 of 1999) or a prosecution for the breach of any law, or submit a reference or complaint to any other relevant institution, commission or statutory body, or take other immediate legal action as appropriate. Alternatively it is recommended that Section 7(h) be added as follows: The Minister must act according to the recommendations and must report in writing to Parliament the action taken and the outcome of such action in terms of Section 247 of the Constitution.
5.8 The Gender Forum
The public observed that this section should be re-named, “Public Engagement” and that the language should reflect that the forum should be decentralized twice annually and hosted in each of the country’s provinces. It must be a public meeting to discuss any issue or issues of concern related to its constitutional statutory functions. Strong opposition was expressed regarding the registration fee to participants. This was regarded as discriminatory as other participants may fail to raise the fees. The fees were therefore, argued to be removed. In addition, the public expressed out that the deliberations and resolutions/report out of the gender forum should be published and the responsible minister should present the reports to Parliament within a specific time frame. People were also concerned with how the shortfalls outlined within the Forum’s report would be rectified.
5.9 Appointment and Functions of the Chief Executive Officer
The general submissions from the public opposed the Minister’s involvement in the appointment of the Chief Executive Officer as this has a danger that the Commission will be viewed just as another extension of the Ministry and also jeopardizes the independence of the Commission. The public noted that in accordance with Section 234 of the Constitution (Staff of Independent Commissions), the Commission should rather in consultation with the Minister responsible for Finance, appoint staff as may be convenient or necessary for the proper exercise of its functions and, subject to any other law, may suspend or discharge such persons.
Based on the submissions and oral presentations made to the joint public hearings by the two Committees and the conclusion made above the following are put forward as the keyrecommendations on what should be done to the Zimbabwe Gender Commission Bill.
In addition to provision 245 of the Constitution the following should also be included in the preamble.
- There should be explicit recognition of the creation of the commission as a key institution to ensure that all gender laws are enforced and elimination all forms of discrimination against women/men and removal of all systemic barriers to gender equality and women rights in Zimbabwe.
- Mentioning of the fact that this is the first time such an institution has been created in Zimbabwe with executive powers.
- The establishment of the Commission should be located within the framework of international and regional gender instruments that Zimbabwe has ratified.
- The Commission to be further located within the context of supremacy of the Constitution and the founding values on gender equality.
- Reference should also be made to Sections 56 and 80 of the Constitution, which provides for equality and non-discrimination and rights of children, respectively.
6.2 Definition of gender and its tenets
It is recommended that the Bill, in its interpretation section, should not only refer to definition of “systemic barrier”, but instead should add other key terms such as gender, gender equality, gender equity, gender discrimination, gender mainstreaming, gender needs, and gender sensitive and their definitions should be synchronized with definitions as reflected in the National Gender Policy and or the SADC Protocol on Gender and Development.
6.3 Independence of the Commission
- Your Committees recommend that there is need for a section in the Bill which explicitly states that the Gender Commission is independent and that no-one should interfere with its functions in line with Section 235 (3) of the Constitution.
- It is the view of Your Committees that the Commission’s business should be conducted by full-time Commissioners, given the potential workload to be handled and that the Commissioners will be vested with executive authority with clear constitutional mandate to execute.
- It is recommended that the powers of the Minister be reduced. The Minister should not be consulted in the appointment of the Chief Executive Officer of the board, nor should he/she have powers to fix the terms and conditions of office of board members of the Commission, as provided for in Sections 10 and 11 of the Bill. It is recommended that there should be a section on “Staff of Commission” in line with Section 234 of the Constitution. Among other things, the section should provide for the appointment of staff of the Gender Commission in consultation with some other authority such as the Minister responsible for Finance. This will guarantee independence of the staff of the Commission from the Minister of Women Affairs, Gender and Community Development.
- Your Committees are of the view that the President should fix Commissioners’ conditions of service, leaving the Minister of Women Affairs, Gender and Community Development with only a supervisory role.
- It is the recommendation of your Committees that there should be a section making reference to Paris Principles. The Paris Principles were adopted by the United Nations Human Rights Commissions (Resolution 54 of 1992) and by the United Nations General Assembly (Resolution 48/134 of 1993). The principles list a number of responsibilities for national institutions, such as commissions with regards to their responsibility to monitor any situation of violation of human rights. Adherence to Paris Principles will make the Gender Commission effective since it will have the requisite authority, power and responsibility to enforce compliance.
6.4 Composition of the Gender Commission
- The Committees recommend for the inclusion within the Gender Commission composition representation of the youth, elderly, churches and people living with disabilities.
- To ensure that the Commission operates independently, the President should appoint the Chairperson whilst the Commissioners elect their own Vice Chairperson.
6.5 Investigation Function of the Commission
Your Committees recommend for the Commission to be empowered to compel the Police to arrest upon their request.
6.6 The Gender Forum
The title should be renamed “Public Engagement” and should be annually organized and hosted twice in each of the country’s ten provinces. The Committee recommends for the scrapping of the fees to allow participant inclusiveness during public debates.
6.7 Appointment and Functions of the Chief Executive Officer
Your Committees recommend that the Commission be empowered to appoint the Chief Executive Officer without the Minister’s influence.
- The Bill should outline the relationship between the Gender Commission and other already existing Commissions to prevent duplication of duties.
2 .It should also be clearly stated in the Bill that the Chairperson has a casting
- The Committee recommends that the word national interest be defined, and also the word “SHALL” in Section 16(2) be replaced with “MAY” which means the Commission does not have to comply if in its view the direction is unreasonable or unattainable.