a tripartite report - Unctad

ZIMBABWE
(under Section 9); basically having the powers to
The general impression from experience according
to interviewed stakeholders is that the Minister
appoints the Commissioners. This is said to have
come from the unwritten version of Section 6 of
the ZCA that “the Minister in consultation with the
President shall appoint the Commissioners” this
provision is neither in the 1996 nor in the Amendment
Act of 2001. According to Section 6 (1) of the
Zimbabwean Competition Act (“ZCA”), members
of the Commission are appointed by the President,
whereas Section 6 (2) stipulates that the Minister
in consultation with the President shall ensure
that all interested groups and classes of persons,
including consumers are being represented on
the Commission. As such, the wording of Section
6 is unclear as to who is the appointing authority.
The anomaly in section 6(2) on the appointment
of Commissioners came about after the amendment
of the ZCA by the Competition Amendment
Act No. 29 of 2001 (2001 Amendment). Prior to
the amendment, both subsections (1) and (2) to
section 6 referred to the President as the appointing
authority. In line with that legal position, the
letters of appointment for the Commissioners who
were appointed during that period stated that “...
His Excellency the President has appointed you
Commissioner...” and were signed by the relevant
Minister. After the amendment, subsection (1) retained
the President as the appointing authority
whilst subsection (2) was amended to provide for
the “Minister in consultation with the President”
selects the persons for appointment as Commissioners.
Following that amendment, the Commissioners’
appointment letters signed by the relevant
Minister stated that “… I have, with the concurrence
of His Excellency the President of the Republic of
Zimbabwe, appointed you Commissioner ...”. The
practice is therefore contrary to what is provided
in the relevant section leading to the assumption
that the 2001 Amendment Act intended to
amend both subsections (1) and (2) to section 6
to have the Minister as the appointing authority
after consultation with the President, but due to a
possible omission by the drafters this was not captured
in the resultant law. It is therefore strongly
recommended to bring the wording of Section 6
ZCA in line with the legislative intention as stated
above. The current wording of Section 6 ZCA is an
anomaly that needs to be looked into as a matter
187
of priority, as it goes to the root of existence of
the Commission and properness of its constitution;
which may in turn have consequential bearing on
implications of decisions done by the Commissioners.
Furthermore, the appointment duration of three
years is deemed too short for a part time Commissioner
to learn and master the subject so as
to be able to serve in the manner and way they
are expected. Adding to the shortcoming is the
fact that the Commissioners are not undergoing
any competitive section to at least ensure that they
have interest in serving as Commissioners let alone
having the requisite knowledge to make decisions
from the time they are engaged. The other shortcoming
on Section 8 is the indirect silence on staggering
membership of the Commissioners based
on the short duration explained earlier. Interviews
with stakeholders have shown that there has been
a scenario in the past, within which the Board had
three Commissioners whose conduct (non-participatory
presence and/or absenteeism) showed that
they had no interest in serving as Commissioners.
Without prejudice to the status quo, the ideal
situation would be for the Minister to appoint
members, following an independent competitive
didates
from which the Minister can appoint. The
President may be left to appoint the Chairman; on
the other hand the powers to remove members
should be vested upon the President alone.
This shall not rob the Ministerial appointment
powers, but shall ensure more transparency and
recruitment of suitable persona to the Board as
compared to how the current system does. The
terms should also be elongated to between 5 to
7 years staggered among the members so as to
ensure that the institutional memory is statutorily
sustained among the same Board and carried over
to the successive Boards. The powers to remove
members shall also have been statutorily put on
check to provide for more versatility in decision
making at the Commission.
Regarding independency, Section 5 (3) provides
that in the lawful exercise of its functions under
this ZCA the Commission shall not be subject to
the direction or control of any other person or authority.
This is a provision that gives statutory independency
particularly in decision making, but this
ZIMBABWE