This approach was also crystallised in Ngaru v Chief Immigration Officer [2004] ZWSC 26. In that
case the Minister of Home Affairs had issued a Ministerial Certificate that it was not in the public
interest to disclose the reasons why the applicant’s husband could not be allowed to stay in the
country as he was deemed to be an undesirable inhabitant of or visitor to Zimbabwe. The court’s final
decision was that the Minister come before the court and cite his reasons for non-disclosure to the
court in camera so that the court could reach a decision.
3. Clause 9 Report and recommendations to Minister after investigation
The provisions of clause 9 are inconsistent with the provisions of section 253 and 323 of the
Constitution in that the Bill
requires the Commission to report to the Minister who will in turn ―take
necessary steps to implement the recommendations of the Commissions or deal with these
recommendation in any manner that he deems necessary in the circumstances‖. The Constitution
empowers the Commission to take measures at the end of its investigation, rather than just produce a
report with recommendations to the Minister. The power given to the Minister to implement the
recommendations of the Commission is unconstitutional as it infringes on the independence
guaranteed in section 235. In terms of the Constitution, the Minister is a conduit of the Commission as
far tabling reports of the Commission in Parliament in terms of section 324.
As alluded to above this infringes on the independence of the Commission as the Constitution does
not provide that the Commission shall report to the Minister but is required to report to Parliament.
The Commission is empowered by the Constitution to implement its findings in various ways outlined
in section 252 and to engage with other institutions implied in that section in order to fully execute its
mandate. Therefore, the effect of clause 9 in its current form limits the power of the National Peace
and Reconciliation as stipulated by the Constitution.
In terms of section 253 and 323 of the Constitution the Commission submit its report to Parliament
through the appropriate Minister. The Commission is accountable to Parliament hence it is requires to
submit reports, not accountable to the Minister the interpretation of this clause seems to suggest. The
submission of the report to the Minister is for the purposes provided in section 253 and 323 not for the
Minister to implement recommendations.
Zimbabwean legislation on Independent Commissions must conform to the Paris Principles adopted
by world countries where countries agreed that National Human Rights Institutions must conform to
certain principles and standards. One of the principles is that the institution must be guaranteed its
independence from Government interference. We have such a provision in our Constitution in section
235 which guarantees such independence. The Bill must not take away that independence by
empowering the Minister to infringe on that independence.
Other jurisdictions with almost similar Commission like our NPRC, have such reporting provisions but
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