On 31 December 2019, the Government of Zimbabwe gazette Constitutional Amendment (No.2) Bill 2019 which proposes 27 amendments to the Constitution of Zimbabwe. The proposed Amendment Bill has received severe criticism from civil society and other social justice actors because of its far reaching negative implications on key Constitutional values including the independence of key institutions such as the judiciary and the Prosecutor General’s office. At the core of the criticism is the fact that the impact of the bulk of the amendments is to concentrate power in the hands of the President.
This move comes at a time when the prevailing socio-economic and political context is characterized by an economy in rapid decline, increased suppression of opposition and reports of corruption scandals implicating members of the President’s family. All these factors combined have increased disgruntlement against the Mnangagwa Presidency across the political divide. Given this context some academics have even questioned if the proposed Amendment Bill is not a ploy by President Mnangagwa’s regime to prematurely rig the 2023 elections. While the country is still under lockdown (level 2), despite criticism from civil society parliament has resumed public consultation hearings on this Amendment Bill.
This paper seeks to analyze the business and human rights implications of amendment No.23 which seeks to amend section 327(3)(a) of the Constitution. Section 327(3) reads as follows;
“3. An agreement which is not an international treaty but which. (a) has been concluded or executed by the President or under the President’s authority with one or more foreign organizations or entities and, (b) imposes fiscal obligations on Zimbabwe Does not bind Zimbabwe until it has been approved by parliament”.
The Constitutional Amendment (No.2) Bill 2019 currently before parliament seeks to delete the term ‘foreign organization and entities’ under section 327(3)(a) and replace it with the term ‘international organizations’. While the Constitution does not define the term ‘foreign organization and entities’, it is a settled position that Constitutional provisions require a liberal interpretation (Kufa and Another v President of the Republic of Zimbabwe N.O and Others (HC 3045/10) ). Based on this expansive interpretation, the term ‘foreign organisations or entities’ under section 327(a) is broad and unrestricted and therefore refers to any foreign organization or entity without any restrictions based on membership.
The Constitutional Amendment Bill seeks to replace this term with the term ‘international organization’ which is defined under section 327 of the Constitution as “an organization whose membership consist of 2 or more independent States or in which two or more independent States are represented”. By adopting this term as defined, the Constitution will effectively exclude any agreements with single foreign entities or States from requiring parliamentary approval. For example, if the Government of Zimbabwe is to enter into an investment or business agreement with China alone, parliamentary approval would not be required for it to become binding on Zimbabwe even if the agreement imposes fiscal obligation on Zimbabwe.
In Zimbabwe, time and again agreements of a commercial nature particularly in conducting economic activities such as mining have had serious negative human rights implications for the communities where the economic activity takes place. Various reports on the Marange and Chiadzwa diamond saga document human rights violations that occurred as a result of diamond mining activities in those areas. More recently, a number of reports have alleged violations of human rights at Chinese owned mining firms. Whilst these have not been addressed, the government continues to enter into ‘mega-deals’ with China and its entities.
The role of parliament as a law making body makes it a vital component in the push towards binding regulatory frameworks on business and human rights. However, as will be shown below, parliament’s role in conducting oversight particularly in relation to government agreements of a commercial nature makes it a potentially effective tool in preventing human rights violations flowing from economic agreements between governments and foreign entities. This is particularly so when one looks at the requirement for parliamentary approval prior to making binding agreements as an avenue for inclusion of human rights due diligence outcomes into the discussion on whether or not a State should enter into a particular agreement. By so doing, potential human rights implications of the proposed agreements can be addressed at a very early stage
Section 327 (3) (a) of the Constitution of Zimbabwe offers an opportunity for preventive intervention by parliament by requiring parliamentary approval for all agreements entered into with ‘foreign organizations and entities’ entered into by the President. Over the last decade there has been growing global interest in developing mechanisms to address corporate accountability for human rights violations. The Constitution of Zimbabwe highlights this move towards corporate accountability through section 44 which extends the obligation to ‘protect, promote and fulfil’ human rights to non-juristic persons. Parliamentary scrutiny of agreements of a commercial nature, through the requirement of parliamentary approval such as in section 327(3)(a) of the Constitution offers a mechanism through which the obligation under section 44 to non-juristic persons can be brought to life. This section provides an avenue for an approval process that can raise and address potential human rights concerns prior to commencement of intended economic projects.
The interrogation of intended agreements during the parliamentary approval process is an opportunity to conduct human rights due diligence on prospective economic activity through community consultations. This would be in line with Principle 1 of the United Nations Guiding Principles on Business and Human Rights commonly referred to as the ‘Ruggie Principles’ which includes a duty to prevent human rights violations by corporations as one of the aspects under the State’s duty to protect human rights. Whilst the Ruggie Principles are not binding, they offer generally accepted guidance on business and human rights. Though the general attitude towards parliamentary oversight has been limited to opposition members of parliament scrutinizing the Executive, it must be understood that oversight is a function of parliament as an institution. As such it is a critical tool for the effective implementation of the ‘checks and balances’ that are requisite for a functional democracy.
In light of the expansive nature of section 44 of the Constitution, the proposed amendment of section 327(3)(a) of the Constitution, is unduly restrictive and goes against the spirit of the Constitution. While the Zimbabwean parliament has not made full use of the opportunities for accountability offered by section 327(3)(a), the solution cannot be to further restrict the scope of parliamentary oversight. The proposed amendment to section 327(3)(a) of the Constitution is in no way progressive and must rejected.
Elizabeth Mangenje Bamu is a Legal Advisor at the International Commission of Jurists and an advocate for Business and Human Rights. All opinions expressed in this paper are her personal views.