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NATIONAL ASSEMBLY HANSARD 06 MARCH 2017 VOL 44 NO 43

PARLIAMENT OF ZIMBABWE

Tuesday, 6th March, 2018

The National Assembly met at a Quarter-past Two o’clock p. m.

PRAYERS

(THE HON. SPEAKER in the Chair)

ANNOUNCEMENTS BY THE HON. SPEAKER

NON-ADVERSE REPORTS RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE

THE HON. SPEAKER:   I have to inform the House that I have received Non-Adverse reports from the Parliamentary Legal Committee on the following Bills, Statutory Instruments and General Notices respectively;-

1.    Public Entities Corporate Governance Bill [H. B. 5A, 2017];

2.    Civil Aviation Amendment Bill [H. B. 4, 2017];

3.    Public Health Bill [H. B. 4, 2017];

4.    Statutory Instruments gazetted during the month of January 2018; and

5.    General Notices gazetted during the month of January, 2018.

RESIGNATION LETTER FROM HON. RTD. BRIGADIER AMBROSE MUTINHIRI

          THE HON. SPEAKER:  I have to inform the House that I have received a resignation letter from Hon. Rtd. Brigadier Ambrose Mutinhiri, Member of Parliament for Marondera West, wherein he informed me that he has withdrawn his membership from the Zimbabwe African National Union Patriotic Front (ZANU PF) and subsequently has resigned his seat as Member of Parliament for Marondera West.

          Section 129 (1) (k) of the Constitution of Zimbabwe provides as follows:-

“… a seat of a Member of Parliament becomes vacant if the member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case maybe, has declared that the member has ceased to belong to it”

Pursuant to the above, I do hereby inform this House that a vacancy has arisen by the operation of the law.  The necessary administrative measures will be taken to inform His Excellency the President of Zimbabwe, and the Zimbabwe Electoral Commission (ZEC) of the existence of the vacancy in line with Section 39 (1) of the Electoral Act, [Chapter 2:13] as amended.

SECOND READING

INSOLVENCY BILL [H. B. 11, 2016]

          First Order read: Adjourned debate on motion on the Second Reading of the Insolvency Bill [H. B. 11, 2016].

          Question again proposed.

          HON. CHASI:  Thank you very much Mr. Speaker.  I rise to present the report of the Justice Committee on the Insolvency Bill.  The Insolvency Bill (H.B.11, 2016) was gazetted on 14th April, 2017.  In terms of Standing Order 135(1), the Bill stood referred to the Portfolio Committee of Justice, Legal and Parliamentary Affairs.  The Bill seeks to provide for the administration of insolvent and assigned estates and the consolidation of insolvency legislation in Zimbabwe and to repeal the Insolvency Act, [Chapter 6:04].

          Methodology 

The Portfolio Committee on Justice, Legal and Parliamentary Affairs held public hearings in Masvingo, Mt Darwin, Mutare, Chinhoyi, Gweru, Bulawayo, Gwanda, Lupane, Hwange and Harare.  For the purposes of containing costs, the Committee conducted public hearings on the Insolvency Bill and Electoral Amendment Bill jointly.  The hearings were held from 1st to 7th November, 2017 in fulfillment of Section 141 of the Constitution of Zimbabwe which provides as follows:

“Parliament must ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate and impracticable”

The Committee expresses its sincere gratitude to all stakeholders who attended the public hearings and many others who made written submissions, as well as, UNDP and SAPST who made it possible for the Committee to conduct its business.

Submissions from Members of the Public

General Comments

          Participants to public hearings were of the opinion that since the Insolvency Bill is technical and voluminous, copies should have been made available way before the public hearings to allow people to adequately analyse it, in order to give informed views.  Most of the participants’ concern was that provision must be made for companies to prioritise the welfare of workers over payment of judicial managers and other obligations.

          Definition / Interpretation of Terms

          There were submissions suggesting that the definitions section on Clause 2 of Part 1 should include the following:  “Debtor” to mean in connection with the sequestration or assignment of the estate of a debtor, which applies to a person or partnership or the estate of a person or partnership, including a partnership which has been terminated but has not been wound up, which is a debtor in the usual sense of the word but does not include a body corporate or a company or other association of persons which may be placed in liquidation or which may be wound up in terms of the law relating to companies or any other law.  “Trustee” to mean the trustee of an insolvent estate and includes a provisional trustee.

          Acts of Insolvency

          There were participants who opined that the Bill should outline acts of insolvency as is the case with the soon to be repealed Insolvency Act (Clause 11).  It was suggested that the acts of insolvency be outlined in the Bill as follows;

A debtor shall be deemed to have committed an act of insolvency if –

a)                he/she leaves Zimbabwe or, being out of Zimbabwe, remains absent there from or departs from his/her dwelling or otherwise absents himself/herself with intent by so doing to evade or delay the payment of his/her debts;

b)               a court has given judgement against him/her and he/she fails, upon the demand of the officer whose duty it is to execute that judgement, to satisfy it or to indicate to that officer disposable property sufficient to satisfy it or if it appears from the return made by that officer that he/she has not found sufficient disposable property to satisfy the judgement;

c)                he/she makes or attempts to make any disposition of any of his/ her property which has or would have the effect of prejudicing his/her creditors or of preferring one creditor above another;

d)               he/she removes or attempts to remove any of his/her property

with intent to prejudice his or her creditors or to prefer one creditor above another or,

(e)     except as provided in this Act, he or she agrees or offers to assign his or her estate for the benefit of his or her creditors or makes or offers to make any arrangements with his or her creditors for releasing him or her wholly or partially from his or her debts; or

(f)     he or she gives notice to any of his or her creditors that he or she has suspended or is about to suspend payment of his or her debts or if he or she has suspended payment of his or her debts; or

(g)     he or she makes default in publishing his notice required by law or if his or her creditors have in terms of this Act declined the assignment of his or her estate; or

(h)     being a trader, he or she gives notice in terms of this Act and is unable to meet the liabilities of his or her business; or

(i)      a notice of assignment having been published in terms of this Act, he or she omits to lodge his notice of affairs as by law or his or her statement of affairs does not fully disclose his or her debts or property and that omission is material.

Undue enrichment arising from certain contracts

Some submissions were made to the effect that certain parts of the Bill leave the insolvent party vulnerable to unjust enrichment of parties they conducted business with before being declared insolvent.

On Clause 34 (1), which reads as follows: - “If before the date of liquidation of his or her estate, a debtor had entered into a contract for the acquisition of immovable property by him or her, and such property had not been transferred to him or her at the date of liquidation, the liquidator of the insolvent estate may elect either to abide by the contract or to abandon it.  It was suggested that if the liquidator chooses to abandon the contract, then the liquidator is entitled to claim the sums of money that the entity had paid before the estate was declared insolvent.  The inclusion of the above condition will ensure that the prevention of undue enrichment, where the seller benefits from the immovable property plus the money paid by the insolvent party.  The seller should, therefore not be allowed to benefit from the insolvent party’s misfortune.

          Clause 38 (5), which addresses the issue of goods purchased not on credit but not paid for.  In terms of this provision, ‘a seller is not entitled to recover any property which he or she sold and delivered to a purchaser whose estate was subsequently liquidated after the sale, only by reason of the fact that the purchaser failed to pay the purchase price.’ Participants were of the view that it is unfair that a seller should not be entitled to recover any property which he or she sold and delivered to a purchaser whose estate was liquidated after the sale, only by reason of the fact that the purchaser failed to pay the purchase price.  This clause was also said to amount to unjust enrichment on the part of the insolvent party.  It was recommended that the clause be revised so that the seller is entitled to have his or her goods returned to them when no payment is effected.

          Vague Clauses

          A number of submissions were brought forward pointing out that the following clauses need to be revised because they were ambiguous.  Clause 66 was said to be too long and that this exacerbates its ambiguity.  It was pointed out that Clause 66 (8) talks about a claim being expressed in foreign currency but there is no definition of what foreign currency is in the Bill.  The definition for foreign currency is critical in light of the fact that Zimbabwe is currently using multiple currencies.

          It was also suggested that Clause 70, which provides for arrear interest should be drafted in clearer terms.

          Welfare of Workers

          At virtually every Public Hearing, participants expressed their great consternation at the way Clause 89 (1) (2) (3) (4) and (5) violate Section 65 (1) of the Constitution, which provides that ‘every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage’.  It was submitted that the above mentioned clause seeks to pay workers from ‘free residue”, in the event of insolvency, thereby ranking workers’ claims in the second position.  It was suggested that the welfare of workers should be given top priority, which means that payment of workers should be prioritized over creditors and the rescue practitioner’s fee.

          Participants said that the best practice is to place the human element first before any other claims because workers’ wages and benefits are a human right which deserves the highest protection even in the event of insolvency.  The participants’ recommendation was that workers’ wages and benefits be classified under ‘secured creditors or privileged creditors and therefore be the first to be paid.  The argument is that if workers’ claims are to be paid from a residue, then they get nothing if there is no such residue and years of work will go unpaid for.  Participants pointed out that such a position was unconscionable.

          It was also said that the Bill’s intention to put a limit of not more than three months on wages and accrued leave was totally unacceptable.  The US$750.00 per employee as wages and US$250.00 for pension arrears and medical aid was deemed to be too little.  Zimbabwe is a signatory to the International Labour Organisation (ILO) and Recommendation 180 of 1992 states that ‘National laws or regulations – [HON. MEMBERS: Inaudible interjections.] –

          THE HON. SPEAKER:  Order, order Hon. Mudarikwa, you have just come now and you are taking advantage of that pillar. – [Laughter.] – Although you can hide behind the pillar, you cannot hide your voice – [Laughter.] –

          HON. MUDARIKWA:  My apologies Mr. Speaker Sir.

          THE HON. SPEAKER:  Thank you.  Hon. Chasi, you may proceed.

          HON. CHASI: Mr. Speaker, before the interruption, I was saying, Recommendation 180 of 1992 states that ‘National laws or regulations shall give workers’ claims a higher rank of privilege than most other privileged claims …’ and it also states that the minimum period of such claims should not be less than 12 months.

          Second Schedule

          The Committee received submissions recommending that remuneration of liquidators be changed to reflect the current rates as stated in Part D of Statutory Instrument 50 of 2017.  Proposals were made for the remuneration of the business Rescue practitioner to be paid according to the tariff applicable to the Business Rescue Practitioner/Judicial Manager, as reflected in Part F of Statutory Instrument 50 of 2017.  It was also recommended that the Judicial Management fee on gross turnover be reduced from 6% to 3% in order to reduce overall costs of Judicial Management.

There was a proposal that in order to capacitate the Council of Estate Administrators, Part G of Statutory Instrument 50 of 2017 should be incorporated into the Bill, it includes a levy of 4% to be paid to the Council of Estate Administrators.

 Recommendations

The Bill should provide that payment of workers must be prioritized over other creditors and the rescue practitioner’s fee.

Acts of insolvency should be clearly defined and specified in the Bill.

The definitions section of the Bill should include the following “Debtor” to mean in connection with the sequestration or assignment of the estate of a debtor, which applies to a person or partnership or the estate of a person or partnership, including a partnership which has been terminated but has not been would up, which is debtor in the usual sense of the word but does not include a body corporate or a company or other association of persons which may be placed in liquidation or which may be would up in terms of the law relating to companies or any other law.  “Trustee” to mean the trustee of an insolvent estate and, includes a provisional trustee.

Clauses 66 and 70 should be revised as their meaning is vague.

The provisions of Statutory Instrument No. 50 of 2017, which relates to Estate Administrators, Judicial Managers and Business Rescue Practitioners should be included in the Bill in order to enshrine their regulation in primary legislation.

Clauses 34 and 38(5) should be amended to correct the anomalous provisions which engender undue enrichment on certain contracts, further impoverishing an insolvent entity.

Conclusion

The Insolvency Bill is welcome development as it seeks to consolidate the insolvency laws in Zimbabwe and introduce “business rescue” into the Zimbabwean legal framework. 

HON. MLISWA: On a point of order Mr. Speaker Sir.

THE HON. SPEAKER: What is your point of order?

HON. MLISWA: Mr. Speaker, you know that the usual practice is that we should be armed with these reports in our pigeon holes and we do not have them.  It becomes very difficult for us to follow what is going on when we do not have them.  Probably that is why you see people are making a lot of noise. So, then how do we contribute to this when these reports are not in our pigeon holes so that we are able to also read and this seems to happen all the time? I think it is important that we are armed with such reports so that we also contribute positively to the debates.  If you see a lot of people not contributing, it is because we cannot get these reports and it seems it has become a very bad habit by Parliament to just allow the mover of the report who has access to the report and we do not have it. It becomes a one man’s show, in fact it is a two men’s show, the Speaker and the person representing and we become bystanders.  I do not think it is fair Mr. Speaker Sir. I hope this matter can be corrected in future.

THE HON. SPEAKER: If it is a conversation between the debating member and the Speaker then you should follow the example of the Speaker who listens very carefully to the submissions.  Nonetheless we will endeavour to ensure that copies are distributed accordingly, but do pay attention and take notes, otherwise.

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I want to allow the Hon. Members to read the Hansard tomorrow then we debate the Insolvency Bill tomorrow, it is very important.  I move that debate on this motion do now adjourn.

THE HON. SPEAKER: So, you have curtailed the debate technically.

HON. ZIYAMBI: Not curtailing it.

Motion put and agreed to.

Debate to resume: Wednesday, 7th March, 2018.

SECOND READING

ELECTORAL AMENDMENT BILL [H. B. 6, 2017]

Second Order read: Second Reading: Electoral Amendment Bill [H. B. 6, 2017].

Question again proposed.

HON. GONESE: Thank you very much Mr. Speaker Sir, in respect of this Bill I would like to begin by saying that this is a very, very fundamental issue because when it comes to the issue of free and fair elections that really governs the governance architecture of our country.  I want to say that it is very essential that we take this matter very seriously.  My concern is that in the past we have talked about it and we have said that we really need a comprehensive amendment to the Electoral Law so that it conforms to the provisions of our Constitution.

If you look at our Constitution, it is a very, very good document and when we look at the section on elections, it gives us a very good framework.  However, what is lacking is that this is not buttressed and supported by the legislation which is in place.  Since 2013, Mr. Speaker, we have had piecemeal amendments to the Electoral Law instead of having a holistic approach where we actually cover everything which is required to be covered in terms of alignment, and also in terms of good practice. 

I do sympathise with the current Minister.  He was not in charge at the time when these piece meal amendments were being brought to this august House and I want to believe that at this point in time, we have got a new man in charge.  We want to see a different approach from him.

In the course of my debate, I am going to highlight a lot of areas which have been left out and I hope that the Hon. Minister is going to take these into consideration.  In this country, Mr. Speaker, we have had a history of disputed elections and one of the reasons is because of the defective legislative framework and this is something which we must now attend to cure so that, going forward, we are now dealing with a situation where the constitutional provisions, the legislative framework, the environment and everything else to do with free and fair elections is adequately covered.

I am very disappointed, Mr. Speaker that we have got so many areas which are not adequately covered.  We have got a Bill which, with due respect, I would say is very shallow in its context.  We have got very few provisions which deal mainly with the introduction of the Biometric Voter Registration and little else in circumstances where this Executive is aware of sentiments which had been raised by Hon. Members in the past of areas which need to be covered, but which still remain uncovered.

I am aware, Mr. Speaker, that our new President has been talking and talking about having free, fair, peaceful and credible elections.  However, Mr. Speaker, this must not be a slogan.  We should not just continue repeating it when in fact, we are not doing anything on the ground to actually demonstrate that we are committed to having a change of the mind set so that, going forward, our elections are those elections where people have got confidence in them and at the same time they are an accurate reflection of the will of the people of this country.   You are an actual reflection of what the people would actually have voted for and not of something else.  As a starting point, Mr. Speaker, I want to say that we must have a change of attitude.  We must now begin to appreciate that when we go for elections, we must expect two possible outcomes. 

I know that in this region, on this continent, we have had wrong attitudes where governing parties, when they call themselves ruling parties, they expect to rule for ever.  We have actually had such sentiments being expressed not just in Zimbabwe, but from outside as well.  For instance in South Africa, there were sentiments expressed by the former President there, Jacob Zuma, that the ANC would rule until the second coming of Jesus.  I know in Kenya the former Vice President Mwai Kibaki, when he was Vice President of KANU, said that it was easier to cut a baobab tree with a razor blade than to remove KANU from power.

Coming closer home, Mr. Speaker, we heard statements in the past that for instance ZANU-PF would rule until donkeys grow horns and I remember former Minister Hon. Jonathan Moyo saying that no Government can reform itself out of power.  That kind of attitude, those kind of sentiments are not helpful and I want to say, Mr. Speaker that at this point in time, we must now practice what we preach.  When we say that we want to have free, fair, credible and peaceful elections, they must be so. 

In this regard, Mr. Speaker, I will now look at what is missing from the current Bill which I want to believe that if the Hon. Minister is going to have a change of attitude from what used to obtain in the past, he will listen attentively to those proposals and have them incorporated, but before I do that, I want to look at what is currently in the current Bill.  There are several challenges and I just want to highlight those which I think are critical

Section 67 of our Constitution is very clear.  It gives all Zimbabwean citizens the right to vote and that right should not be tampered with.  However, when we look at our electoral law, when we look at its provisions particularly in relation to the provisions which led to the registration of voters, you will find that they are very cumbersome.  We had experiences, Mr. Speaker, where when people were trying to vote - the resident’s qualifications, an onus is being placed on the voter to prove where they stay when it is common cause that in this country, most people do not have title deeds and so on.  Affidavits are not a sufficient cure.  I have a problem in the sense that it proved very difficult for most of the people who do not have their own accommodation to actually obtain those affidavits.  I do not see the need of having those cumbersome qualifications. 

Why do we not simplify it and simply say that the potential voter should just be able to make a declaration of where they stay without having to appear before a Commissioner of Oath because once they make that declaration, it should suffice.  Their ipse dixit should suffice.  They just indicate that I stay or I reside at this particular place and they appear before an electoral officer and say so and that declarations which does not have to be signed by a commissioner of oaths, would then be deemed to be sufficient.  I do not see any difference because the Commissioner of Oaths is not in a position to prove that the deponent who is appearing before him or her actually resided at the place indicated.  So, to me, it serves no useful purpose.

Then the other aspect, Mr. Speaker, which I think should be better dealt with relates to the issue of intimidations.  We have had a lot of complaints about people being asked to produce their voter registration slips.  That tactic is not only illegal and in violation of the law, but it is also very intimidatory because you are dealing with simple folk who may not appreciate the exigencies of the matter, who then get intimidated.  We must tighten this so that specific offences should be created and crafted in such a manner that anyone who does that is going to face the music so that it is not really left to people to report to the police but ZEC should then be empowered to deal with those errant members of society who are intimidating voters by asking them to produce those voter registration slips.

I will now look at aspects, Mr. Speaker, which I think should be better covered in the proposed amendment to the extent that then it makes it easier for all Zimbabweans to exercise their right to vote which is clearly enshrined in Section 67 of the Constitution.  I will avert to the provision which is in the Constitution which is very clear and unambiguous and which clearly states that every adult Zimbabwean citizen, wherever they are, have got the right to vote.  It means that it does not matter whether they are resident in Zimbabwe, whether they are resident in the United Kingdom, in New Zealand, in Australia or wherever, you must have that right which is covered.

What the fourth schedule to the Constitution merely does is to say that the electoral law can prescribe presidential requirements, but those requirements are just meant to ensure that voters are placed on the appropriate voters roll and not to hinder the voters from being able to vote.  I believe that the current Electoral Act, even if it is amended by the current Bill will continue preventing people from being able to cast their vote even if they are so registered.  I want to say that it is not necessary for citizens being required to prove where they stay.  It should just suffice that they are Zimbabwean citizens; they have got their passport or their ID.  They should simply declare that I stay in such and such a place and that on its own should suffice.

Mr. Speaker, I have already alluded to the issue of those who are not resident in Zimbabwe.  I want to say we must administratively make it possible for those people to get registered without having them flying to Zimbabwe to register at a particular station. We must make adequate arrangements.  We must progressively begin to put in place the necessary mechanisms which will enable those who are outside Zimbabwe to be able to vote. 

Other than this category of people, we also have people who are or who will be in hospital – at the present moment, they should present themselves at a polling station.  Why should that be?  Why should not the Zimbabwe Electoral Commission (ZEC) make appropriate arrangements to go to hospitals so that those who may be indisposed at a particular point in time get registered?  When it comes to the actual polling, we should put in place appropriate mechanisms for those who are in hospitals to be able to vote.

Apart from those in hospital, we also have people who are in prisons.  The Hon. Minister, being a lawyer, knows that in our prisons, we have got a very large number of people who have not been tried or convicted.  It is very clear that there is a presumption of innocence. Those people who are in remand prison are not even guilty of any offence but at the present moment, there is no mechanism put in place to enable them to exercise their right which is clearly spelt out in the Constitution.  I would like to say that the electoral law must make provisions for those who are in remand prison to be able to vote.  I will extend it further to say that even those who are convicted prisoners should be able to vote.  There is no distinction in Section 67.  One may have committed an offence – yes one may have been convicted by a court of law but you still enjoy your rights.  The exceptions which are set out in the Bill of Rights do not extend to the right to vote.  If the framers of the Constitution wanted this to be included, they would have explicitly said so.  The fact that it does not reflect means that they still must enjoy their right to vote.  I would like to say that should be covered.

Again, we have got persons with disabilities.  We do not have mechanisms which are put in place.  I want to say that our electoral law should make it easier.  For example, we have got people who are blind.  Why do we not have ballot papers which are in Braille so that those people can cast their vote on their own without the assistance of others?  The current provisions require them to be assisted by an electoral officer then a police officer must be present.  That compromises their right to vote in secret if a police officer witnesses where they are casting their vote.  We must put in place the appropriate mechanism so that even those in wheel chairs and so on can be able to vote on their own without requiring the assistance of anyone else who will then get to know how they will have cast their vote when in fact the cornerstone and essence of free and fair elections is that the vote to be cast by a voter must be secret.

We also have got provisions in our current law which infringes the independence of the ZEC. I believe that this must be rectified so that at the end of the day, what is spelt out in the Constitution gets full effect in terms of the actual law that we have.  For instance, the current Section 9.5, ZEC is not allowed to dismiss its Chief Elections Officer without the approval of the Minister of Justice.  Why should it be so?  ZEC is an independent body.  It should have the full powers.  If it is not happy with the conduct of some members of its secretariat, it should have the unfettered discretion to do so without seeking the approval of the Minister.

Again the current Section 12.1, ZEC is not allowed to accept donations or grants from any non-government source without the Minister’s approval.  I believe that the people who are commissioners are persons of integrity. They should be able to determine who can assist them in terms of the financial resources that they require without the approval of the Minister who is a member of the Executive. 

Again in terms of Section 18.5, the Minister is empowered to make regulations for mandatory automatic and electronic voter registration.  Why should this power be given to the Hon. Minister and not to ZEC.  Again, the accreditation of observers is not left to the discretion of ZEC but instead, it is largely put in the hands of the observers’ accreditation Committee where the Executive has got excessive representation. 

When it comes to the making of regulation, ZEC and certain procedures, they need to seek the approval of the Minister who is not only a member of the Executive but also an interested party because most of the Hon. Ministers are political animals. As such, they have got their own interest.  I would like to say that we should not allow members of the Executive to have this overbearing power on an independent body.  The independent body should be left entirely to exercise its discretion when it comes to those matters.

We also have the issue of voter education ….

THE TEMPORARY SPEAKER (HON. MARUMAHOKO):  Order, Hon. Gonese – you are left with three minutes.

HON. GONESE:  Thank you Mr. Speaker.  I will try to wind up.  In terms of voter education, ZEC is given a monopoly over this provision and they infringe on the freedom of expression as guaranteed in terms of Section 61 of the Constitution.  When it comes to actual polling, you will find that the usual practice has been that we get concerned too much with the actual election period without covering the pre-election period. Let us look at access to the media – the current provisions in the electoral law actually relate to the polling period after proclamation, after nomination of candidates.  It does not cover the pre-election period.  For instance, in this pre-election period, we have had excessive coverage of the current sitting President.  But when it comes to the activities of the other political parties, they are not adequately covered.  For instance, the Movement for Democratic Change (MDC) of which I am member, has held rallies throughout the country.  What has been clear is that the Zimbabwe Broadcasting Corporation (ZBC), for reasons best known to itself, has not been covering MDC rallies and yet this is the pre-election period; parties are gearing themselves for the elections and yet we have more coverage of even the first lady buying tomatoes and mangoes by the roadside instead of having coverage of our President, Advocate Nelson Chamisa addressing rallies.  He was in Chinhoyi this week and he was in Masvingo the other day.  That has not been covered at all. That is the problem whereby you then get coverage being restricted to some political parties.  I know that during elections, ZEC will have powers over the media of coverage.  I believe that the act should actually apply even to the pre-election period. 

This also relates to the issue of observers – at the time of voter registration, that is where all the shenanigans and gerrymandering take place.  We must have mechanisms for observers if they are so inclined, to come at this point in time during the pre-election period so that they can observe for themselves what is actually happening and not have a scenario where observers are invited when nominations have been done when in fact the damage would have been done before the nomination of candidates during the pre-election period.

Therefore, it is essential that as a nation, we need to have credible elections.  We do not want anyone to cry foul…

THE TEMPORARY SPEAKER:  Order, Hon. Member.  Your time is up.

HON. GONESE:  In conclusion, I would like to say that the Electoral Act needs extensive amendments.  I was also going to talk about other laws like POSA and AIPPA which need to be amended so that they can fully give effect to the issue of free and fair elections.  I thank you Hon. Speaker.

HON. NDUNA:  Thank you Mr. Speaker. I want to add my voice to the Electoral Act and the amendment of the same.  Mr. Speaker, at 16 in Zimbabwe, you can have a driver’s licence.  At 18, you can marry and at 21 Mr. Speaker, it is termed the majority age, you can work and in the case of America, if they amend their laws, you can maybe own a gun if they amend their laws to restrict it to those who would have had a good and strict background check, you can own a gun seeing that there is a proliferation of a lot of school and college killings that are occurring in America.

Mr. Speaker Sir, I say this because a blanket Zimbabwe Electoral Commission assertion that speaks to the age of 18, when anybody reaches the age of 18 after school; they should be able to just walk into the polling station and be given their choice to vote for whoever they want to vote for.  It should be given in the same manner that I alluded to that at 16 and the law is very clear that you are able to get a licence.  If it is clear to that extent, it should also be clear to the extent of choosing our national leaders because at the end of the day, politics is the one that runs the nation.  We are here because we are to make laws for the good governance and order for the people of Zimbabwe.  It should not be a choice of a few that speaks to many being led.  It should be a choice of many that speaks to them being led by a few.

          Mr. Speaker Sir, I also want to touch on the issue of Braille for those that are disadvantaged in terms of sight that was spoken about by Hon. Gonese.  On Sunday Mr. Speaker Sir, I was in church and the way this giant called Samson was humbled in the book of Judges, he had sight and when he lost his locks via one Delilah, the Philistines went after him.  They shaved off his hair and at that point Mr. Speaker Sir, he became like a child.  I remember what Pastor Timburu said, that a young man was asked to take him to the arena between two poles so that he could dance to the audience.  He was humiliated to the core.  I say so because, if you want to know that you need help, you need to lose your sight and it is one way that can get somebody to be so humbled.  So, Zimbabwe has 15% of its people who are differently abled, they are disabled.  It is only prudent and right for us as a nation to make laws also that include that, one in every 15 people that are disadvantaged in terms of sight, they need to also have a right in terms of casting their vote in terms of having their choice, they need to be put in the mainstream of the voting system. 

How can we do it?  Just yesterday we were debating the electronic systems for those people that are disadvantaged to which end I said, all equipment that is termed for disadvantaged people should be imported duty free.  Now, here is an opportunity for our Government to shine by introducing laws and equipment for those that are not endowed with sight and are disadvantaged so that they can also have a choice of their own.  When I say 15% of people living in Zimbabwe or the citizens of Zimbabwe without sight and are differently abled, I speak to more than 1.5 million people who are maybe two million people.  For a President to be called a President in Zimbabwe, the threshold is two million.  When you get to two million, you certainly would have gone ahead of the other aspirants and you can be termed President.  Here is a number that we can look into and adhere to in terms of their ethos and in terms of their needs and that can quickly make sure that we have a President in office Mr. Speaker Sir.

          Mr. Speaker Sir, the issue of proof of residence – I have spoken about ages that give you a right to certain liberties and to certain benefits in the nation.  When we deal with the age of 18 years, where we are saying you then have a right to vote…

          THE TEMPORAL SPEAKER (HON. MARUMAHOKO): Order Hon. Member, there is a Mazda Pickup ABW 9219, if the owner is in this Chamber could you please go and remove it.  It is blocking other traffic.  You may continue Hon. Member.

          HON. NDUNA: Thank you Mr. Speaker Sir.  I was talking about the issue of proof of residence.  Where I come from, there are about 20 000 households and this speaks to the number of houses that are there.  There are more than 80 000 people resident in a place that holds about 20 000 people or which is designed to hold 20 000.  So Mr. Speaker, it means that sekuru is living in the same house nemuzukuru, nemukadzi wavo, nambuya namai nababa, nemwana nechizukuru ibvi.  It then means that the issue of lack of accommodation and infrastructure in terms of housing should not disenfranchise those that are willing to go and cast their vote.  They should not be laboured to bring the issue of proof of residence.  As they present their IDs - at that point, they should be asked whether they want to be registered to vote or not. 

The issue of registration certificates in terms of IDs should be the passport for somebody to be registered to vote.  The issue of proof of residence; you will then see having given you the example of Chegutu West  Constituency, the people whose interests I am here for, it will show you that a lot of them are not landlords.  A lot of them Mr. Speaker Sir, are lodgers or tenants.  If the landlord decides not to give you proof of residence, or if there is nobody to be a Commissioner of Oaths regarding where you want to stay or where you stay in terms of proof of residence, if they do not sign it for you, it then means that you have to go back home and live to fight another day.  We are four to five months before elections and it is my clarion call that it is not too late.  Let us get everybody who would want to vote according to Section 57 of the Constitution that has been alluded to.  Let them be allowed to go and vote after presenting their ID.  The constitution is very clear.  Why should we throw away our people to other nations which nations they have never been to, whose people they have never seen and whose descendants they do not know. 

          Mr. Speaker Sir, Zimbabwe used to be part of the Northern Rhodesia and Nyasaland and South Africa.  It used to be the core or the heart of these nations that are now disintegrated.  What needs to be enshrined in the Electoral Act Mr. Speaker Sir is that everybody irrespective of where their parents came from, they need to exercise their vote.  Otherwise, we will continue to have people that are internally displaced citizens who are disenfranchised and have no right to vote.  Mr. Speaker Sir, I want to thank you for this opportunity that you have given me to effectively, efficiently and vociferously debate on the Electoral Amendment Act.  I thank you.

          HON. MLISWA:  Mr. Speaker Sir, thank you very much for affording me this opportunity to debate on this Bill.  Let me also take this opportunity as a Member of Parliament to commend the manner in which Hon. Ambrose Mutinhiri has resigned from the party.  I think what is important is that his contribution to the struggle will always be in our history.  It is not many that resign.  The intention of resignations is not important but what is important is his contribution to the struggle.  I do wish him well; he is a very humble man.  Despite his CV in the liberation struggle, no one ever thought that he would show it off.  There are those who have never held any positions like he did but they tend to want to go around trying to tell us who they are.  I think we have a lot to learn from a man who did well and I say so because he was a personal friend to my father in Zambia during the ZIPRA time.  My father had a lot of time for him.  He worked hard for the liberation of the struggle and may he enjoy his retirement wherever he goes.  Thank you.

          I also want to add to this debate by saying it is important Mr. Speaker Sir that before we even embark or talk about elections, have we fulfilled the aspect of people having IDs?  I think we seem to be very weak in that area.  Most people do not have IDs, as a result we go on to elections.  The ID system was not done properly.  Identification of the people is not yet complete but we still go for elections.  Section 67 of the Constitution is very clear that everybody is free to participate in an election.  How can you participate in an election Mr. Speaker Sir when you do not have an ID?  How thorough were we in advocating for people to have IDs?  Even in my constituency today, Norton Constituency we have people who are still saying that they were never given an opportunity to have IDs, which means that we have left out quite a number of people in this election.  It is important that this be done first, and I think when people are satisfied, clearly we then go on to voter registration.  There is a missing link in that regard. 

          I want to commend His Excellency, Cde. Emmerson Dambudzo Mnangagwa for preaching free, fair and credible elections, but most important, non-violent elections.  I say this with a heavy heart after having been an independent candidate in the by-elections of Hurungwe West which I think the Minister of Justice was the Chairman of the province then will attest to the violence that happened in Hurungwe West, the violence in which people were beaten up for their choice, even those within ZANU PF.  Violence was the order of the day where today people have got broken limps as a result of that.  I had a situation where my own maid had her arm broken because of the violence.  The farm was invaded and workers were beaten up.  Today, the very same institution says I must come back to the party.  The question is, how do you come back to a party which beats its own supporters?  How do you go back to a constituency where the people who supported you were severely beaten up?  It only shows that we do not have conscience at the end of the day.

          The violence in the parties is certainly something that needs to be dealt with.  We have intra-party violence which escalates to the violence in general elections.  All the political parties in this country are guilty of intra-party violence.  Intra-party violence seems to be the basis of training people to go and beat people at general elections.  Leaders are guilty of this, but the leaders who are in the forefront of perpetrating violence are never disqualified in elections, even the primary elections.  If anything, they are actually given an opportunity to lead yet they have ascended to leadership because of violence, which means that we are breading violent leaders.  Come general elections, they are in the forefront of that.  The Bill must address that, that any leader who is involved in violence must never participate in an election.  That can only assist us in curbing the issue of the violence that I am talking about. 

          Mr. Speaker Sir, we have a situation where the respect of even the elderly is totally taken out, “ubuntu, hunhu.”  It seems that when it is election time, they put on a certain mask that makes them forget or not be known who they are.  They forget that after elections, we are all Zimbabweans.  How do we then address the injuries and the damage made?  There is no social healing that ever happens.  The Bill must address that.  What social healing goes on when this happens?  Nothing.  All the political violence that has happened, no party ever goes and say sorry to people but you still expect those people to still vote for you.  How heartless are we as a nation?  After showing such brutality to people, we still come before them and say can you vote for us without saying sorry.  Social healing has got to be incorporated into this Bill so that we are seen to be moving forward.

The Bill certainly must also incorporate the aspect of intimidation.  I have never believed there is rigging that goes on but there is what we call electoral malpractice - where we believe intimidation, vote buying and violence are means.  I classify them as electoral malpractice.  How will the Bill address this – intimidation and vote buying; to a point where even food aid, which the Government does not even buy, which is coming from the very same countries that you also denounce, you use to campaign.  Food aid is for everyone.  It is not supposed to be a campaigning tool where the distribution of food aid is only limited to those in the ruling party, to a point that the ruling party forgets that it is the Government of the day whose responsibility is to feed every Zimbabwean.  We have a situation where structures of Government are involved in the distribution of food, particularly emphasis on those in the ruling party. 

I am a representative of the people of Norton who are Zimbabweans, but they are deprived of food and rice because I am an Independent Member of Parliament.  Does that not mean that I am Zimbabwean?  Why can we enshrine and accept the democracy which people like Nikita Mangena, Josiah Tongogara and the now resigned Member of Parliament Ambrose Mutinhiri fought for in the struggle?  It was a multi-party democracy where one must enjoy whoever they want to be associated with.  It is not a crime not to be part of the ruling party or any party.  It is one’s democratic right but the moment that you are seen to be against the Government of the day which is the Ruling Party; you are seen to be an enemy of the State.  They forget that they actually have more enemies within them than those outside.  They forget that even the factions are within them and not outside.  They forget that they have gone through a barrage of suspending and expelling people through lies within them but they want to now blame people who are representing people.

          We must be able to accept the democratic right of the people in choosing who they want to be associated with.  The Constitution is not just a mere document which when we feel we must flag it, we just flag it without implementing it – without sticking to its tenets.  The village and traditional leaders are a tool where despite them not liking you, you force them.  They are seen to then whip people to go and vote.  Surely can you really commend yourselves for being in power when you have inflicted violence and whipped people to go and vote and you celebrate that we are in power?  Certainly not sustainable for a short while because people will never forget what they have gone through in having to exercise their right.  Allow people to get out of their houses without being whipped.

          In Hurungwe West, I saw traditional leaders even confisticating National Identifications two days before elections and numbers were being written to say, you are number three, we are watching you.  So even the National Identification that you are supposed to possess yourself is kept by somebody, surely and then you go and say, ‘we are in power’.  In power through intimidation and fear – that is not power, that is being in power through a cowardice approach.  How does the Bill address that on the day of elections?  Where there is a queue which the village head is forced to address, where people are told and intimidated that if you do not vote, your hut will be burnt down?  I have seen that happening and never thought it would happen.  How will the Bill address the traditional leaders?

          Even today in Hurungwe West, when you want to address members of the development association, Chief Dandawa who is also an Hon. Senator, blocks people from going to attend a development meeting because it is being called by somebody; yet the chiefs themselves and the party are not forging ahead with development.  You even starve people of development; you even starve people of what is rightly theirs in terms of what they should achieve.  If you are going to stop people from being involved in development programmes, why do you not proffer those development programmes?  You cannot deny people to drink water when you cannot offer them water.  This is the trend that you have and how will the Bill address those issues?

          This is the new dispensation that we talk about.  This is the new dispensation we talk about but before it is even three months old, already there are people who believe they must stand in the way of the new dispensation.  How will the Bill deal with that?

          We have issues where we have people with disabilities, who we know cannot get to polling stations.  How do we accommodate them?  It is not their fault, do we have a mechanism that helps them?  Hon. Gonese spoke about those in jail who must have the right to vote and there is nothing that says because you are convicted, you cannot vote.  We have people who are convicted who are still given millions of money in this country and others who are convicted but are not allowed to vote.  What do we do about those in our prisons at the end of the day like you said now that it is a new dispensation?  Those with disabilities must be factored into the Bill whether it means that we go to where they are, be it in a wheelchair as others cannot even walk and there is no means of getting them there.  We must find a way of accommodating them.

          I want to talk about those who are 18 years and are allowed to vote but they cannot stand for office.  This is the only country that I know of that you get a driver’s licence when you are 16 years old and a driver’s licence is a licence to kill too but you are not allowed to stand office until you are 21 years old.  So we are ready to allow somebody who is 16 years old to drive but they cannot stand for office but they can vote at 18 years old but they cannot stand for office but they must be 21 years old.  How do you vote at 18 years old?  The mere fact that you can vote at 18 years shows that you are mature to do whatever thereafter but they still say that you cannot hold office.  So your job is to put people in office and not to be in office which means there is a big disparity which needs to be looked into.  If we can trust people at 16 years old to drive, let us equally have those at 16 years old to be given a chance to stand for office.

          THE TEMPORARY SPEAKER (HON. MARUMAHOKO):  Order, order Hon. Member, can you windup you are left with three minutes.

          HON. MLISWA:  I have hardly spoken for Five Minutes and am left with three minutes, how is that; the time is there any way …

          THE TEMPORARY SPEAKER: Order, order Hon. Member, can you windup please.

          HON. MLISWA:  I have just spoken for five minutes but alright, three minutes is good enough to summarize Mr. Speaker Sir.

          We want to talk about the aspect of Voter Education.  When should it come to an end?  Should the people say that we have had enough or it is the system that must say, we have had enough?  Voter education seems to be not enough especially in this country where it should be a continuous process and the voter registration should be continuous but the voter registration is not continuous.  The voter registration comes in and they call it a blitz.  A blitz only shows that you are being reactionary and if it is not a blitz it must always be available for people to do this.  So how do you then marry the National Identification, the voter registration and the voter education?  Those have got to be a total package that you give to people and at a certain point, it must start as soon as elections are out.  2018 elections are finished, the next day people must have access to getting National Identification documents, there must be voter education and there must be voter registration.  If we are able to do that, then we are able to then say, we have given everyone an opportunity to be able to vote and choose who they want.

          The importance of these elections is that they give legitimacy to whoever is in power.  Let me applaud His Excellency the President for even accommodating the observers especially from countries that have always viewed Zimbabwe’s elections as very controversial.  He must be commended for that and in being commended for that, it requires every one of us, especially those from the ruling party, to set the example in saying that the European Union observers will be here and everybody will be here because the President has confidence that the election will be free, fair  and credible. 

In so doing, I think the tone has been set and I want to end my contribution by saying the violence which continues in intra-party must clearly be brought to a stop.  The Hurungwe West elections had a report from the Zimbabwe Human Rights Commission which is mandated Constitutionally under Section 242, it is not an NGO because the Ruling Party always says reports come from NGOs.  I want them to read the recommendations of that report which equally points out to certain people like Nigel Murambiwa, Chinjai Kambuzuma who should be arrested in that report but they have not been arrested. So, how do we go to an election when there are recommendations to arrest people who perpetrated crime but they are still left scot-free and are already in the campaigning team for the ruling party and you expect it to be a free and fair election?

          I shall be taking this matter before the courts to ensure that elections do not go ahead until the perpetrators are first arrested.  What we are being guaranteed is that these people will continue unleashing violence with impunity because they enjoy the support of the ruling party because when it comes to elections politicians will win at all costs. I think this must stop, I say this and I put it on record that those recommendations from the Zimbabwe Human Rights Commission are imperative in which they even suggest that the Zimbabwe Republic Police must be trained to know how to deal with people.  Failure to implement those recommendations, I shall approach the courts to stop the elections from happening until those recommendations are adhered to according to the Constitution Section 242 which empowers the Zimbabwe Human Rights Commission to investigate human rights violations and that report clearly points out to human rights violation from the traditional leader, ruling party and from those in office.  I want to thank you for this contribution and hope that the implementation of a free, fair and credible election will be done.  I thank you. 

          HON. T. J. DUBE: Thank you Hon. Speaker.  I wish to thank the Hon. Member for Norton for having raised a pertinent issue on the citizenship registration which is a very burning issue to our country.  I must assure the House that our Portfolio Committee is seriously addressing this issue, because it has always been like a favour for someone who wants to get his/her identification document; whether it is an identification documents, passport or even marriage certificate. 

          I would say that we adopted this as a culture even from the colonial days because the native commissioner usual had some junior officers who handled this and made sure that before you could get your identity document you had to really struggle.  Now when you go to these offices, it is easier to solve a quantum mathematic problem than get the documents that you want because they make it extremely difficult.  As a result most of our people are not registered.  We must understand that getting a registration certificate or any identity document is a right, it is not a privilege.  We have to completely get away from that culture of making this very difficult.  I appreciate that our Registrar General has been in this office since 1980 and that is a long time – [Laughter.] - So, it might be that he did not change his mindset from what he adopted when he got the job.  Our parliamentary Portfolio Committee is looking forward to invite him next week or thereabouts to come and answer a few questions.  This is an issue which is burning in the minds of people, the whole country.

          We have talked about children who do not have a father and because of that they cannot go to school because they cannot get birth certificates.  The mother is alive, witnesses are there but they are still denied birth certificates because they do not know their fathers.  If possible the mother may not even know the father.  I thank you.

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker Sir.  In view of the fact that the majority of our women parliamentarians are attending a workshop, I want to hear their voice also; I move that debate do now adjourn.

          Motion put and agreed to.

          Debate to resume: Wednesday, 7th March, 2018.

          On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House adjourned at Nine minutes to Four o’clock p.m.  

 

 

 

 

 

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National Assembly Hansard NATIONAL ASSEMBLY HANSARD 06 MARCH 2017 VOL 44 NO 43