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This article participates on the following special index pages:

  • New Constitution-making process - Index of articles


  • Assessing Independent Commissions in the COPAC draft Constitution of Zimbabwe
    Idasa

    November 02, 2012

    http://www.idasa.org/our_work/zimbabwe_constitutional_reform/

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    Introduction

    The role of the State is limited and defined in a Constitution. Constitutionalism is, essentially, the demarcation and circumscription of the authority of the State so as to protect citizens. It defines the social values and objectives that ought to underpin the State and the way it functions. It can also describe the relationship between the State and the individual, as well as the rights of the individual. Some of the limitations placed on the State are exercised by independent institutions that play an oversight role. For this reason, how the institutions are established, who is appointed to them, their powers and their resources all play a critical role in determining their effectiveness. In fact, national institutions supporting democracy and human rights have been established in more than 100 countries.

    The role of the courts and the manner in which the courts exercise judicial review is also critical to a constitutional State. Together, these are the basis for determining the effectiveness of checks on state fiat. In this context the creation of independent institutions to promote observance of human rights and to protect people from abuse of government power is a significant achievement in Zimbabwe's transition to a constitutional democracy. The COPAC draft Zimbabwe Constitution of 18 July 2012 establishes a number of institutions to promote democracy and human rights. These structures are critical against the background of the absence of human rights and the need to entrench a human rights culture and act against state repression, corruption and anti-democratic practices.

    In relation to independence and the appointment process of national institutions, the Paris Principles are the universal principles that are accepted as laying out the principles that such institutions should follow. In this regard they state:

    The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights.

    According to a United Nations (UN) Centre for Human Rights document on National Human Rights Institutions, "an effective national institution will be one which is capable of acting independently of a government, of party politics, and of all other entities and situations which may be in a position to affect its work". The document notes "any institution can only ever be as independent as the individuals of which it is composed" and "the method by which members of national institutions are appointed can be critical in ensuring independence". It also states that the "founding legislation of the institution should specify all matters relating to method of appointment, including voting and other procedures to be followed. Criteria for appointment should set out the prerequisites (including nationality, protection, qualifications, etc) for appointment to a national institution".

    In an Organisation for Security and Co-operation in Europe (OSCE) paper it was noted that:

    The greatest guarantee of the impartiality and fairness of national institutions is the selection of an Ombudsman or human rights commissioner widely respected across political, economic, social and cultural lines as wise, impartial, fair and someone who seeks the broadest guarantees of respect for human rights. The quality of the selection process ensures the quality of the candidate chosen. Because these institutions greatly depend on the people who head them, one of the most important factors in the institutions' effectiveness and success is how the people who head them are chosen.

    This paper examines the role and function of various commissions that are contained in the 18 July 2012 draft Constitution submitted by the Constitution Select Committee. These include:

    • The Judicial Service Commission (Chapter 8 part 3)
    • The Civil Service Commission (Chapter 10)
    • The Independent complaints mechanism for the Security Services (Chapter 11 part 1)
    • Defence Service Commission (Chapter 11 part 2)
    • Police Service Commission (Chapter 11 part 3)
    • Correctional Service Commission (Chapter 11 part 5)
    • Zimbabwe Electoral Commission (Chapter 12 part 2)
    • Zimbabwe Human Rights Commission (Chapter 12 part 3)
    • Zimbabwe Gender Commission (Chapter 12 part 4)
    • Zimbabwe Media Commission (Chapter 12 part 5)
    • National Peace and Reconciliation Commission (Chapter 12 part 6)
    • Zimbabwe Anti-Corruption Commission (Chapter 13 part 1)

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