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MINISTRY OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

And

MINISTRY OF HEALTH AND CHILD CARE

Southern Region Workshop Report on the Alignment of Legislation:

Stakeholder Consultations on the Coroner’s Office Bill

Holiday Inn, Bulawayo

15th March -16th March 2017

Prepared By:

INTER-MINISTERIAL TASK-FORCE ON THE IMPLEMENTATION OF THE

CONSTITUTION (IMT) TECHNICAL COMMITTEE

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Table of Contents

ACRONYMS .......................................................................................................................................... 3

1. INTRODUCTION ......................................................................................................................... 4

2. PROGRAM OF EVENTS ............................................................................................................ 4

3. SUMMARY OF PROCEEDINGS FOR DAY ONE .................................................................. 4

3.1 INTRODUCTIONS AND OPENING REMARKS ...................................................................... 4

3.2 OBJECTIVES OF THE STAKEHOLDER CONSULTATION WORKSHOPS ............... 5

3.3 OVERVIEW OF THE LEGISLATIVE ALIGNMENT PROCESS .................................... 5

3.4 BACKGROUND TO THE DRAFT CORONER’S OFFICE BILL- A PERSPECTIVE FROM

THE MINISTRY OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS ............................. 6

3.5 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE, A PERSPECTIVE

FROM THE MINISTRY OF HEALTH AND CHILD CARE ........................................................... 8

3.6 PLENARY SESSION ................................................................................................................... 9

3.7 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE- A

PERSPECTIVE FROM THE NATIONAL PROSECUTING AUTHOURITY (NPA) ............... 10

3.8 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE- A

PERSPECTIVE FROM THE JUDICIAL SERVICE COMMISSION [JSC] .............................. 11

A Regional Magistrate from the region, shared on the challenges that are faced by Magistrates

within the Inquest System. ................................................................................................................ 11

3.9 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE-

PERSPECTIVE FROM THE ZIMBABWE REPUBLIC POLICE (ZRP) ................................... 13

3.10 OVERVIEW OF THE DRAFT CORONER’S OFFICE BILL .......................................... 14

3.11 PLENARY SESSION ............................................................................................................... 14

3.12 ANALYSIS OF THE CORONER’S OFFICE BILL ........................................................... 18

Expansion of the long title .................................................................................................... 18

Establishment, composition and powers of Coroner’s Office .............................................. 18

Duty to Report ....................................................................................................................... 19

Inquests on death of members of armed forces dispensed with in certain cases................... 19

Coroner’s findings and comments ........................................................................................ 19

3.13 PLENARY SESSION ............................................................................................................... 19

3.14 CONSOLIDATION OF DAY I PROCEEDINGS ............................................................... 20

4 SUMMARY OF PROCEEDINGS FOR DAY 2 ...................................................................... 21

4.2 PLENARY SESSION ........................................................................................................... 28

5. CONSOLIDATION OF PROCEEDINGS & CLOSING REMARKS .................................. 30

6. LIST OF ANNEXURES ............................................................................................................. 31

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ACRONYMS

AG- Attorney General

CC- Chief Coroner

CCL- Cabinet Committee of Legislation

CALR- Centre for Applied Legal Research

IMT- Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution

JSC- Judicial Service Commission

LDC- Law Development Commission

MoJLPA- Ministry of Justice, Legal and Parliamentary Affairs

MoHA - Ministry of Home Affairs

MoHCC- Ministry of Health and Child Care

MoFA- Ministry of Foreign Affairs

NPA- National Prosecuting Authority

PG- Prosecutor General

RG- Registrar General

SDD- Sudden Dearth Docket

ZRP- Zimbabwe Republic Police

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1. INTRODUCTION

Zimbabwe adopted a new Constitution namely the Constitution of Zimbabwe (Amendment

number 20) Act of 2013. In line with this development the Government of Zimbabwe

initiated a Constitutional Alignment Process aimed at aligning all legislation with the new

Constitution.

In pursuit of this, Cabinet established the Inter-Ministerial Taskforce on the implementation

of the Constitution (IMT) in February 2015.1 The IMT is an institutional structure that

consists of legal advisors, senior state counsel and representatives from all Government

Ministries. The IMT is chaired by the Attorney General and its role is to oversee the

implementation of the Constitution and ensure that all legislation is consistent with the

Constitution. More specifically, the IMT provides technical research support to Line

Ministries (upon their request) for the development of Discussion Papers, the provision of

direct technical drafting support to all Line Ministries for the development of draft Bills as

well as facilitating the holding of national stakeholder consultation workshops on draft Bills

under review. It is within this context that the MoJLPA, led by its Policy and Legal Research

Unit, and with the assistance of the IMT, held a second stakeholder consultation workshop

with the objective of reviewing and soliciting further input on the draft Coroner’s Office Bill.

2. PROGRAM OF EVENTS

The Southern Region Workshop was held from the 15th to the 16th of March 2017 at Holiday

Inn Hotel in Bulawayo. See Annex 1 for the programme.

3. SUMMARY OF PROCEEDINGS FOR DAY ONE

3.1 INTRODUCTIONS AND OPENING REMARKS

The meeting was opened by the Principal Law Officer in the Department of Constitutional

Affairs [CPA] in the Ministry of Justice Legal and Parliamentary Affairs [MoJLPA]. The

purpose of the meeting was to seek stakeholder input into the Coroner’s Office Bill. It was

noted that the MoJLPA, Ministry of Home Affairs [MoHA] and Ministry of Health and Child

Care [MoHCC] are playing an important role of facilitating the alignment process for the

Coroners Office Bill.

1 See http://www.justice.gov.zw/imt for further details.

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It was indicated that the workshop was part of the ongoing process of aligning laws with the

Constitution of Zimbabwe Amendment (No.20) Act 2013 (the Constitution), which process

was being spearheaded by the IMT. The presenter stated that the purpose of IMT was to

coordinate the efforts of different ministries in the alignment process as well as to offer

technical assistance on the same as may be required. Emphasis was placed on the fact that the

legislative alignment process is not the responsibility of the Mo JLPA affairs alone but line

ministries also have a responsibility to identify their respective alignment laws. The

presentation also highlighted the following aspects;

Background of the Inquest system

Disadvantages of the Inquest System

Challenges brought about by the Inquest System

Other challenges affecting the Inquest System and the ripple effects it has on the

justice delivery system.

Advantages of the Coroners system

In closing the presenter reiterated that the Government of Zimbabwe represented by the three

responsible ministries of MoJLPA, MoHA and the MoHCC, was committed to the setting up

an effective Coroners Office system. See Annex 2- Opening remarks.

3.2 OBJECTIVES OF THE STAKEHOLDER CONSULTATION WORKSHOPS

The Stakeholder Consultation Workshops had the following objectives:

(i) To gather views and comments on the draft Coroner’s Office Bill as provided by the

MoJLPA

(ii) To obtain technical advice from stakeholders on the bill

(iii)To discuss the way forward in setting up the Coroner’s Office

3.3 OVERVIEW OF THE LEGISLATIVE ALIGNMENT PROCESS

This session was facilitated by an IMT Technical Committee representative and Law Officer

in the Law Development Commission (LDC). The presenter gave an update on the legislative

alignment process, outlining a number of aspects that include the following;

The background to the alignment project;

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The establishment and composition of the IMT

Why all legislation must be aligned to the Constitution.

An outline of the various stages of the law making process.

The different actors involved in the constitutional alignment project and the

importance of public participation in the process

The number of laws that have been aligned with the Constitution to date.

The specific role of the IMT which is centred on the following;

(i) Coordinating the constitutional alignment process

(ii) Providing a framework for technical support to line Ministries in the development of

legislation.

(iii)Coordinating with the Attorney General’s office and LDC in the preparation of

legislation required to implement the constitution before the parliament.

An outline of some of the IMTs achievements to date which include the following;

(i) Establishing a defined process for alignment

(ii) The development of the control list which shows the laws that require alignment.

(iii)Formulation of a platform for monitoring and evaluating the alignment progress

through bi- monthly meetings

(iv) The development of the Bill tracker which is published on the IMT website

Some of the IMTs challenges in the alignment process which include;

(i) That some line ministries do not channel their laws through the IMT for alignment

resulting in a parallel system whereby some line ministries will be aligning by

themselves while the IMT is assisting other line ministries to do the same. This is

making the IMT’s role of coordinating the alignment process difficult.

(ii) Reluctance of some line ministries to bring their laws for alignment, thus further

delaying the process.

3.4 BACKGROUND TO THE DRAFT CORONER’S OFFICE BILL- A

PERSPECTIVE FROM THE MINISTRY OF JUSTICE, LEGAL AND

PARLIAMENTARY AFFAIRS

It was submitted that the Coroner's Bill was mentioned by the President at the opening of the

obtaining parliamentary session as one of the bills to be deliberated on by Parliament.

Accordingly it was noted that, this was more reason for stakeholders to ensure that there is

speedy finalisation of the Bill. The following aspects were highlighted;

The definition of the Coroner System

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This was defined as a more formalised system of investigating violent, unexpected,

unexplained or suspicious and unnatural deaths and as the oldest medico-legal investigative

system whose origins dates back to 1194 in England. The system is operative in most parts of

the UK, in more than half of the States in the USA and in all Commonwealth countries that

were former British colonies. The presenter also reflected on;

The purpose of an inquest;

The advantages of the Coroners system over the Inquest system

Why a Coroner System in is particularly vital for Zimbabwe. On this, it was noted

that some of the key reasons include that;

(i) The provision of forensic pathology services has been a challenge since independence

and as such, the country has largely relied on expatriate forensic pathologists.

(ii) The reliance on expatriate forensic pathologists has brought about diplomatic hurdles

in securing the experts to testify in court as mostly the approval of their embassies

is required

Also highlighted, were some of the key events leading to the development of the Bill which

include;

An outline of the stakeholders and structure who were involved and the roles that each

of them had.

The reasons for the delay in the process of coming up with the Bill.

The approval of the Coroners Office concept by the Cabinet Committee on

Legislation (CCL).

Processes leading to the development of the current draft Bill by the Legislative

Drafting Division of the Attorney-General’s Office in 2016.

Why the Coroners Office Bill is an Alignment issue

It was submitted that the Coroner's Office Bill is an alignment issue and while in terms of

section 69(1) of the Constitution of Zimbabwe, an accused in a criminal trial has a right to a

fair trial among other rights, the current legislative framework under the Inquest Act was

however inadequate in this regard, making the issue a matter for alignment with the

Constitution. Further, the proposed law would go a long way in fulfilling the MoJLPA’s

mission which is to uphold, develop and provide accessible, efficient and effective justice.

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Considering the importance of the Coroner's Bill to the criminal justice system in Zimbabwe,

it was emphasised that there is need to avoid further unnecessary delays as previously

experienced. See Annex 3- Presentation on the background to the draft Coroners Office Bill.

3.5 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE, A

PERSPECTIVE FROM THE MINISTRY OF HEALTH AND CHILD CARE

The Director of Pathology in the Ministry of Health and Child Care shared his ministry’s

perspectives on the obtaining inquest system, equally emphasising on the need to ensure that

the bill is ready for presentation during the current parliament. The presenter, also impressed

on the importance of the Bill including the fact that forensic science and medicine is where

the expertise lies in respect of the Coroners office and that the justice ministry has to rely on

that expertise in the pursuit of its own mandate. The legal framework for forensic pathology

services was outlined as including the Anatomic Donations and Post Mortem Examinations

Act [Chapter 15:01], the Criminal Procedure and Evidence Act [Chapter 9:07], the Inquest

Act as well as the Burial and Cremations Act [Chapter5:03]. The presentation also

highlighted the major challenges facing the Inquest system which were categorised as

follows;

The lack of uptake of Forensic Pathology by Zimbabwean medical doctors.

A fragmented and inadequate legislative framework.

Human resources shortage partly due to the country’s lack of capacity to train forensic

pathologists.

Rudimentary infrastructure.

Shortage of specialist institutions and facilities, for example, CT scan services,

pathological laboratory test facilities as well as toxicology testing and analysis

equipment.

The adversarial nature of Zimbabwe’s legal system.

The adversarial legal system it was pointed out, is a serious drawback in attracting forensic

pathologists in the country largely because it is too aggressive for medical doctors when they

are required to testify in court and to deal with legal issues and technicalities that are beyond

their medical training. The Coroner system on the other hand however, provides a buffer

between the courts and the forensic experts in many ways because there is already an opinion

on the cause and manner of death.

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The presentation was concluded with a list of the various expertise required in the system to

enhance its capacity to effectively execute its mandate. These include among others,

Radiological services

Forensic archaeology -exhumation specialists

Forensic Entomology- to study the age, timeframe on when the dearth occurred

Forensic anthropology- this is the expertise to study the bones, gender, race, co-

mingled of bones, also helpful when people burned beyond recognition

Forensic Genetics for victim identification

See Annex 4-for the full presentation.

3.6 PLENARY SESSION

A plenary session ensued after the presentations and a number of issues were raised during

the discussions as follows;

Possibility of collusion between forensic scientist and the coroner

A question was raised on the likelihood of having collusion on findings between the Coroner

and the forensic scientist aligned to that Coroner, stemming from a situation where a forensic

scientist is attached to the Coroner. In response, it was highlighted that in other jurisdictions,

the Coroner does not employ forensic experts. Instead these are employed by other

institutions such as universities or the health ministry and when the Coroner has a situation

requiring the services of a forensic expert, one is then selected from the database that the

health ministry should have in possession and these can then be summoned from wherever

they are normally employed, doing away with the risk of collusion.

Current cases in need of forensic expertise

One stakeholder made reference to an ongoing case of a suspected serial killer in Bulawayo

who was allegedly burying his “victims” and they wanted to know whether this was one of

the cases that would have required the expertise of forensic experts. In response, it was

pointed out that there are lots of cases like that which justifies why the Coroners system was

needed in Zimbabwe. It was also highlighted that if the relatives of the “victims” involved in

the case at hand resources, an option at the moment was to seek the services of private

pathological services but however, it remained worrying from an international perspective

that in such cases only those with money would get to have justice.

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Cross examination of forensic experts in court

Discussions were also held on the issue of buffering the forensic experts from cross-

examination in court. This issue it was noted, stems from the perception that the draft

Coroners Bill gives a general perception that pathologists are protected from court process. It

was argued that there are certain issues where cross examination is indispensable and as such

the doctors should be obliged to go through with the cross examination. A related concern

was also that where the death in question involves suspected negligence by a medical doctor,

the doctors who are required to testify in court on such issues, tend to protect their fellow

doctors. In response, it was stated that instances where doctors protect their colleagues while

testifying, would be minimised under the Coroner’s system as such testimonies are

accompanied by an independent Coroner’s report. In jurisdictions that use the Coroner’s

system, the doctor is then called on to explain the jargon and terminology but otherwise the

Coroner’s report holds a lot of weight in such instances.

3.7 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE- A

PERSPECTIVE FROM THE NATIONAL PROSECUTING AUTHOURITY (NPA)

A representative from the National Prosecuting Authority (NPA) presented on the NPAs

perspectives on the Inquest system highlighting some of the key challenges which have been

faced by the NPA under the inquests system. In particular, Statutory Instrument 129 of 1998

(commonly referred to as the Inquest Rules of 1998), was cited as one of the major

instruments presenting challenges for the NPA due to the fact that its scope is very limited to

just four aspects that is; the identity of the deceased, the manner in which the deceased died,

the time of death and the location of the death. This in turn, limits the jurisdiction of

Magistrates such that they are compelled to disregard any other evidence that may be

presented which is outside the given parameters regardless of its relevance.

Other challenges with this legal instrument were presented as including its Rule 3 which

provides for public inquests only on undefined “special circumstances” as well as the lack of

clarity on whether or not a decision by a Magistrate can be appealed against apart from

judicial review.

Other challenges faced by the NPA under the inquest system were noted as including;

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The fact that most of the personnel involved in the Inquest system are untrained and

there is no standardised training of such.

Lack of appeal procedures in the Inquest Act.

A complex and time consuming exhumation process, a decision of which the

Magistrate has no final say in as this is the Attorney General’s preserve.

Confusion created in instances where deaths are caused by the negligence of the state

which jeopardises investigations by the state agencies.

The existence of a number of cases that are lying idle which the NPA cannot

recommend or decline prosecution on due to the absence of toxicology reports.

The underfunding of the forensic laboratory department which results in samples

being sent to South Africa and which in turn, causes a delay in the return of the results

and finalisation of cases.

Difficulties faced by the NPA in challenging medical evidence by medical

professionals due to lack of expertise in that area.

Refusal of some foreign doctors to testify in court an example being the Cubans who

in themselves, also have serious language barriers which in some instances, leads

them to concede to the wrong things under cross examination, severely affecting the

NPA’s case and work.

The presenter concluded by highlighted that with some inquests, while it is the prosecutor

who is supposed to lead evidence, the NPA often finds this challenging because it is mostly

the Magistrate and the Police who know more about the case than the prosecutor. This it was

noted, is because the Inquest system involves the Magistrate more by empowering them to

order an inquest after perusing a SDD which the prosecutor would not have seen.

3.8 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE- A

PERSPECTIVE FROM THE JUDICIAL SERVICE COMMISSION [JSC]

A Regional Magistrate from the region, shared on the challenges that are faced by

Magistrates within the Inquest System. Some of the major challenges highlighted include the

following;

Rule 4(2) of the Inquests Rules which precludes persons from addressing the

Magistrate on the facts, thus limiting the evidence that can be adduced. This is

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however most problematic when considering that most of the witnesses who come to

testify in inquest hearings are lay persons who understand very little about such legal

parameters. It is also difficult for witnesses as well as the Magistrate to draw the line

between facts as provided and evidence that can assist the court in arriving at how the

deceased died.

Rule 7 which is framed in the imperative, providing that Magistrates shall not express

any opinion on any matter other than on those mentioned in the Rule 6, limiting the

Jurisdiction of Magistrates to simply ascertaining the following:

i. Who the deceased was,

ii. How the deceased came to his death,

iii. When the deceased came to his death, and

iv. Where the deceased came to his death.

The fact that the Courts’ decision on an Inquest is not final as it is expected to only

make recommendations to the Prosecutor General, which recommendations the

Prosecutor General is not bound by.

Lack of urgency by the prosecuting and investigatory authorities in pursuing the

recommendations by Magistrates.

Reluctance of witnesses to testify in inquests due to factors such as fear of adducing

incriminatory evidence and also fear of being victimized.

Difficulty in securing the attendance of witnesses from remote areas due to financial

constraints. This is so because they are only reimbursed their bus fares when they

have already arrived at court and testified.

Lack of adequate rules governing the procedure in inquest proceedings.

The non-availability of pathologists or doctors to clarify their findings where foul play

is suspected.

Delay in the availing of toxicology results, yet Magistrates are expected to determine

the cause of deaths.

Police delays in bringing Sudden Death Dockets (SDDs) reports to Magistrates.

Delays by Police in dealing with comments by Magistrates on the SDD’s which

negatively impacts on the timeous completion of inquests.

Delays in referral of Inquest dockets to court resulting in good evidence being lost.

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Exclusion of ordinary members of the public from cross examining witnesses.

Lack of time frames in the Act within which the various procedures must be done

from the time the death is known to the time the inquest is conducted.

Lack of experience and training in the field of forensic investigations for most

investigators in the Police.

Delays in finalisation of inquests involving poisoning because of delays in toxicology

reports by the police.

As with the NPA, the JSC also lamented the challenges posed by foreign doctors when

testifying in court due to language barriers as well as the long and cumbersome procedure

involving Ministry of Foreign Affairs and their embassies.

3.9 CHALLENGES POSED BY THE INQUEST SYSTEM OF ZIMBABWE-

PERSPECTIVE FROM THE ZIMBABWE REPUBLIC POLICE (ZRP)

A representative from the MoFA, highlighted the challenges of the Inquest system on the

Zimbabwe Republic Police, some of which stem from the Inquest Act itself including the

following;

Section 2- it outlines a cumbersome and time consuming procedure which has led to

some investigations being unfruitful because while the procedure is being followed,

the body will be decomposing resulting in most of the valuable evidence being

destroyed. This in turn has resulted in many post mortem reports from pathologists

concluding that the cause of the death is indeterminate.

Section 3- it empowers the police to inspect the body and not its appearance and

where time has lapsed after the death of a person, the condition of the body would

have changed from the time it is inspected by the police to the time it is inspected by

the Pathologist.

The shortage of pathologists in the country and largely dysfunctional mortuaries, are

also frustrating the work of the Police which often has to wait long for the post

mortem to be done, while the body will be decomposing.

Lack of expertise in the Police to determine the cause of death despite the legal

provisions requiring them to also inspect the corpse, thus their evidence or opinion on

such is often of little value.

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Magistrates often have busy schedules delaying the immediate reporting of sudden

deaths as stipulated in the Act. Such reports often have to wait until the Magistrate is

able to attend to the Police, during which time some of some of the evidence may be

lost.

Lack of measures to compel the relevant experts to attend a crime or death scene is

another weakness that is affecting the work of the police.

The non-criminalisation of people who move without identification also makes it

difficult for the Police to ascertain the identity of the deceased person. This is

compounded by the fact that not all persons are on the National Fingerprint Bureau

database and the fact that where the body is badly decomposed, even the fingerprints

cannot be uplifted for identification purposes.

The lack of a legal duty compelling people to testify or give evidence in respect of the

identity of a deceased person.

Lack of expertise in the police to correctly determine the causes of deaths or in the

required standards for diligent medical care, makes it difficult for them to obtain the

requisite evidence.

3.10 OVERVIEW OF THE DRAFT CORONER’S OFFICE BILL

A representative from the MoJLPA’s Legislative and Drafting Division who also drafted the

Coroners Office Bill, gave an overview of the Coroner Office’s Bill which she indicated,

aims to replace the Inquest Act. Indication was made of the fact that the Bill introduces a

number of new provisions including those creating a governance structure and giving powers

to Coroners to adequately investigate deaths. The presentation also highlighted the policy

aims of the Bill as well as the scope of each of the Bill’s five parts as well as the justification

and intention behind the provisions.

3.11 PLENARY SESSION

The following submissions were raised following the presentation:

Conduct of doctors

The discussion was opened with an invitation by the MoHCC for stakeholders with

observations or concerns relating to the conduct of medical doctors, to arrange for a meeting

where each of the concerns will be addressed to their satisfaction by the ministry. It was

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further reiterated that the proposed Coroners office if put in place, would answer all concerns

which were raised by different stakeholders following presentations made on the day.

Burial orders

A representative from the Registrar’s department raised the issue that the department has a

challenge relating to burials that are conducted without a burial order or registration of death

especially in rural areas. Also, many people in these areas, do not know how to go about

getting the requisite documentation on actual causes of death. Against that background, the

department wanted to know if there was a way to ensure that persons living in such areas can

easily obtain documentation on the actual cause of death. In response, the MoHCC concurred

that the issue raised was indeed a huge challenge but however, there was also no solution on

how these could be remedied at that moment.

Registration of deaths

It was pointed out that the proposed bill seeks to penalise any adult who sees a death and does

not report it to the Coroner including members the police force and if the bill were to be

passed, it would give a starting point in making the system of registration of deaths more

regular.

Coroner system envisaged

A question was posed to the drafter on what type of a Coroner the Bill envisages i.e. whether

it is a life or professional Coroner and if their exact terms could be defined. Further, an

inquiry was also made to ascertain if the Bill could provide for the removal of the Coroner

and if so, under what circumstances this could be done. In response, the drafter, advised that

she would make some additions including that a Coroner should have some training in

forensic science and that what was currently provided in the Bill was just but the minimum

benchmarks which can be improved upon. The MoHCC also weighed in stating that there

were two systems operating in the world that is the Coroner and the Medical Examiner. The

Medical examiner deals only with forensic pathology but for Zimbabwe, it was not prudent to

start with this system because the required forensic pathologists were currently unavailable.

However in the future, if the human resources capacity in this area improves, perhaps then

the country could move to this system.

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Term limits for the Chief Coroners tenure

A question was posed for continued consideration on whether the Chief Coroner’s Office

should have term limits as provided for most public office in the new Constitution.

Acceptable documentation for purposes of burials

Representatives of funeral services noted that documentation by Traditional leaders’ is not

treated as acceptable legal documentation for purposes of burials and concern was whether

the new bill provides for confirmation by Traditional leaders to be treated as legal burial

documentation. In response, the MoHCC advised that once the Coroners Office bill is in

place, then all SDDs would be reported through the Coroner and the current role of traditional

leaders would fall away.

Affordability of post mortems

The JSC questioned whether post mortem reports are only done for those persons who are

financially stable and if the poor with equally deceased relatives do not have the same right to

a post mortem. The concern it was noted, stemmed from a case brought to court where a

person had died in hospital and their relatives suspected foul play but on requesting for a post

mortem, the hospital in question had advised them that the post mortem could not be done

without money. The MoHCC responded by pointing out that there are two types of post

mortems that is, the ‘medical interest’ and the ‘coroner’ post mortems.

(i) The ‘medical interest’ post mortems are done when someone dies of a disease in

hospital and it is carried out with the informed consent of the relatives. In this

case, the post mortem is done to uncover the cause of death and a report goes to

the requesting doctor while the results are also shared with the next of kin. This

type of post mortem is done outside Coroner’s purview.

(ii) The Coroner post mortem is mandatory and the autopsy will result in a report which

should be complete with a full picture that informs the Coroner. Further, this type

of post mortem has nothing to do with a person’s means. It was thus

recommended that in relation to this, a third schedule specimen of what should be

in the report produced by the medical expert, should be included in the Coroners

Office Bill.

Concluding their response on this issue, the MoHCC urged that in the event of any suspicious

refusal for a post mortem, the matter can be taken through the police for a proper

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investigation. Further, once the Bill is passed, such matters would become the Coroner’s

issues and all related processes would be funded in terms of the proposed Act.

Determination of causes of death

Representatives from the Registrar General’s office raised concern over the vague causes of

death that are at times written by doctors an example being “head injury” which in their

opinion is not a cause of death and is thus inadequate. A representative from the JSC also

added that Magistrates also face challenges where SDDs are sent for their attention with the

cause of death recorded as “unascertainable” and yet upon reading the docket one can see that

there is a possibility that it could be ascertained. In response, representatives from the

MoHCC noted that crafting a cause of death is an acquired expertise in forensic pathology

which is not an easy finding to make. Further in principle, if one realises that there is a

deficiency in a report on the cause of death written by a doctor, the Registrar’s office has

recourse to the Provincial Medical Director. Reports on such deficiencies should ultimately

result in the retraining of doctors to enhance their capacity to correctly determine causes of

death. On the other hand, for medical doctors, investigating a death requires adequate

information but in most cases the Police just deliver a body without adequate background

information to help the doctors to fully ascertain the cause of death which contributes to

vague conclusions on the cause of death.

Dysfunctional mortuaries

The JSC further wanted to know how the MoHA foresees dealing with the obtaining situation

where bodies are taken to dysfunctional mortuaries where they end up decomposing. In

response, the MoHA noted that the obtaining situation would likely continue and

compounded by the shortage of pathologists to carry out the required post mortems thus

bodies will likely continue to be kept at mortuaries for a long time. The MoHCC added that

while Chikurubi Prison now has a mortuary structure that can accommodate about 200

bodies, generally there is inadequate structural capacity in the country to accommodate dead

bodies. Ideally, dead bodies should not be kept at hospitals while an unidentified body must

not remain kept after 28 days. If unclaimed after that period, a pauper’s burial must be done.

However if there is need for pathological examination, then the body can be kept beyond that

stipulated period and if the Coroners Office Bill goes through, the MoJLPA and the Coroners

office would have their own mortuaries which should alleviate the current challenges.

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3.12 ANALYSIS OF THE CORONER’S OFFICE BILL

IMT representative from the Centre for Applied Legal Research (CALR), gave an analysis of

the Bill which was prepared by Professor G. Feltoe highlighting the strengths and weaknesses

as well as recommendations for further input into the Bill. Some of the key aspects that the

presentation focussed on include the following;

Cooperation between Ministries

Co-operation and collaboration of the three responsible Ministries, the MoJLPA, MoHCC

and the MoHA, will be essential for the successful implementation of the Coroners Office

Bill and as a result, the Bill should explicitly provide a framework for consultation with and

active participation in the Coroner system by the other two Ministries. Further a

representative from the forensic section of the police and representatives from the Health and

Justice Ministries should also be present in the proposed Coroners Board, while a clause

mandating compliance with the gender provisions and requirements for regional

representation of the Constitution should also be included in the Bill.

Expansion of the long title

The Long Title of the Bill must be expanded so that it sets out the main thrust of this

proposed law.

Definitions and Objectives

A proposal was made to amend a number of definitions such as; Chief Coroner, Coroner,

Board, Custodial officer, interested person and unnatural death. It was further recommended

that the definition of “extended family” should be clearly defined to also cover other

members who are not relatives or the siblings to the deceased. Further to the proposed

definitions, it was also proposed that the objectives of the Bill be expanded to include

provision of expert forensic pathology evidence upon death.

Establishment, composition and powers of Coroner’s Office

The Coroner’s office should be decentralised and have offices outside Harare and overall, the

system must be established in such a way that it is sustainable and financially viable. Further,

the Bill must clarify the extent of the Coroners powers and mandate.

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Training

Medical Coroners must undergo training in forensic pathology, while legally qualified

Coroners are also given appropriate training on the requirements for investigation into and

preservation of the evidence in relation to unnatural deaths.

Duty to Report

In respect of the duty to report a death imposed in section 13, clarity should be given that

failure to do so attracts only civil and not criminal liability.

Inquests on death of members of armed forces dispensed with in certain cases

In respect of section 21, the Bill must obligate the presiding officer in an armed forces court

of inquiry, to communicate the findings of the inquiry to the Chief Coroner and to allow the

Chief Coroner to order the holding of a further inquiry where necessary.

Coroner’s findings and comments

Further to the provision in section 24(1)(a), which provides that a copy of the Coroner’s

findings shall be given to a family member of the deceased on behalf of the family, there

should be provision for another member of the family to obtain a copy of the findings if that

person has been unable to obtain a copy from the first family member. Also, the findings of

the Coroner should also be published on the website of the MoJLPA and the MoHCC.

See Annex 5- copy of the presentation

3.13 PLENARY SESSION

The following interventions were made after the analysis of the draft Coroners Office Bill:

Conducting of post mortems in the presence of a family member

A stakeholder was concerned that a post mortem by its nature is a messy process and that

having relatives during such a procedure may not be an easy thing for them to take and as

such, this aspect may not need to be included in the Bill. The concern was however clarified

by the MoHCC who highlighted that only an “appointed” member of the family would be

allowed to witness, not just any member as the family as agreed to by the family.

Duty of the Police to facilitate a post mortem

Concern was raised that in some cases, the Police attend a scene at a homestead of a deceased

person but thereafter, do not ensure that a body goes for a post mortem. Emphasis was made

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of the fact that it is indeed the duty of the Police to take bodies for a post mortem although at

times relatives themselves refuse to have their deceased go through a post mortem and in

such cases. the Police cannot insist if there is no foul play suspected.

Representation of other ministries in the Coroners Board

It was argued that the proposed representation of the other ministries in the board and having

the bulletin going to the websites of the other ministries would compromise the independence

of the Coroners Office. It was added that having the Chief Coroner chairing the board is

indeed an issue to be discussed but the format proposed in the Bill, was notably similar to that

of the current NPA structure.

Training of medical coroners

It was pointed out that while it was desirable to train all medical coroners in forensics, up and

until the country has enough human resources in the area, this may not be possible. This was

dependant on the availability of qualified personnel.

Appointment of the Chief Coroner

It was also suggested that there is need for further reflection on whether or not the President

needs to consult anyone when appointing the Chief Coroner and if so, who those persons are.

Inquests on death of members of armed forces dispensed with in certain cases

The provision of the Bill that a military or air force court of inquiry will be constituted to

inquire into the cause of death and rendering a coroners inquiry unnecessary, suffices in

respect of members of armed forces and should be left as is as it has to do with state security

issues.

Ascertaining the cause of death for people who die in remote areas

There must be provision in the bill to provide for how persons who die e.g. in remote rural

areas can have their cause of deaths ascertained/recorded, for example through an affirmation

given by 3 members of the family. The proposed Bill will ensure that the screening process of

natural death will be thorough.

3.14 CONSOLIDATION OF DAY I PROCEEDINGS

Day one ended with a consolidation and recap of the day’s proceedings by IMT technical

Committee member who also exhorted the participants to hold any further contributions for

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the second day of the workshop where they would be given enough time to express their

views during the group discussion.

4 SUMMARY OF PROCEEDINGS FOR DAY 2

On Day 2, participants were led through a group work session conducted with the guidance of

questions assigned to each of the groups. Further to this, stakeholders had the leeway to

consider other relevant aspects not discussed in the questions availed to them.

4.1 RECOMMENDATIONS FROM STAKEHOLDERS

The following responses and recommendations were provided in the report-back session:-

Office of the Coroner (Part II)

Question Recommendation

1. Does the proposed structure

guarantee the independence of the

Office of the Coroner?

The Coroners office should be a

standalone office that has entrenched

independence and whose funding is

appropriated directly from Treasury.

The term of office for Chief Coroner

(CC) should be spelt out in the bill,

The term of office should be a

maximum two five year terms, after

which the Chief Coroner should retire

and this must be reflected in the Bill.

The Bill must also outline conditions

for the disqualification of the Chief

Coroner.

The Chief Coroner should not be the

chairperson of the board

2. Is the proposed method of

appointing Coroners appropriate?

• Divergent opinions were proffered on

how the Chief Coroner must be

appointed. Two recommendations were

made as follows;

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(i) Appointment of the Chief Coroner

should be done in consultation with

the Minister of Health and Child

Care and Justice.

(ii) The selection of the Chief Coroner

should remain the preserve of the

Coroner’s Board.

• For Medical Practitioners, it is

proposed that they be appointed for 3

years without restrictions and the same

should apply for Legal Practitioners

3. How should the Coroner’s Office

interact with the police during

investigations?

• Police officers at each police station

should be mandated to handle sudden

death cases.

• A Coroner should be found at all

administrative/police Districts, at least

one for each District.

4. Compare and contrast the

proposed structure with that of

the National Prosecuting

Authority?

The current demand side of the Coroner

Office cannot match that of the NPA.

There is need to remove the Public

Service Commission from sitting on the

Coroners Board. Instead, a Judge from

the High Court/JSC or NPA (of or

above Chief Public Prosecutor), should

be appointed.

The Coroners Board should also have

representation from the MoHA, in

particular from the ZRP with a rank of

or above Senior Assistant

Commissioner, as well as

representation from the MoHCC.

The Coroners Board may not be

necessary and only serve to create an

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unnecessary fiscal burden.

The Chief Coroner and his officers

should be apolitical.

5. Are the qualifications of the

Coroner appropriate?

• .The Bill should spell out the minimum

qualifications of Chief Coroner

including 7 years’ experience in

forensic science..

In respect of qualifications, an attorney

is recommended for the job of the

Coroner since they have investigatory

skills/expertise.

6. Any other recommendations?

• The Bill must set the retirement age of

the Chief Coroner at 65 years

• Section 8 of the Bill should read “Civil

Service” and not public service.

Reporting of Deaths (Part III)

Questions Responses

1. Are there any gaps in the proposed

method of reporting deaths that may

result in some cases being missed?

Section 13 (1), must be clear that

every death must be reported to the

Police as well as clarify the test to be

used to determine an unnatural

death.

Section 13(2) must be redrafted as it

gives the notion that it is a civil

matter instead of a criminal one and

it places the burden of proof on the

accused which is against the rules of

natural justice that he who alleges

must prove. The burden of proof

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should remain with the state and not

on the accused as has been put in the

section.

Section 13(5) - the section in its

current form is ambiguous. It is not

clear who reports to who. It is also

not clear what exactly the Coroner

must report to the Chief Coroner.

There should be timeframes within

which a Coroner must report a death

to the Chief Coroner.

Overall section 13 (5) the section

must be struck out.

2. Given the paramount importance of

records in death investigations, is the

proposed system adequate to ensure

the presentation of medical records

and other relevant evidence?

• The obligation to keep records of

death should be placed on every

adult in possession and not be

limited to institutions only.

• The obligation should also be

extended to every interested party

especially the communities.

• Medical records for deaths that

occur outside an institution should

become state records and it should

be illegal to destroy such records.

3. Any other recommendations

The bill must clarify whether and

under what circumstances the Chief

Coroner would have jurisdiction

over deaths that occur outside

Zimbabwe

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4.1 Investigations and Inquests (Part IV)

Questions Responses

1. What improvements can be made to

the proposed system of

investigations and inquests to avoid

miscarriage of justice?

2. Are the proposed methods of

investigations comparable to

international best practices?

3. Any other recommendations?

Section 15 of the bill which involves

investigations has the following key

issue that should be addressed.

(i) High rates of missing dockets during

investigations by Police leading

to some cases not proceeding to

the court.

The law must specify the person(s)

who should be entrusted with the

safety of SDDs.

It must also be mandatory that

duplicate SDDs should also be

provided.

Section 15(d) should have a

component on witness protection

for persons who testify in court.

The Coroner should have the power

to allow certain officials to be at the

crime scene in the event of the

suspected foul play death.

In cases where dockets go missing,

an affidavit should be permissible.

The SDD system should be revised,

including by making senior Police

officers accountable.

Section 16(3), of the bill is silent on

what happens to organs that are

removed from the body after a

medical examination. There should

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be a provision in the bill on the

disposal of these tissues.

The bill must also require the written

consent of the family members to be

secured regarding how the tissues

are to be disposed.

Section 19 (d) must qualify which

family member or representative

will be allowed to be present for a

post mortem in cases where

members would want to be present

at a post mortem examination.

Section 20(4) gives the Chief

Coroner powers that are too wide

and the bill must provide that the

Coroner must request for a private

inquest through the court.

Section 20(5) must be revisited

because the provision is not clear on

what the Coroner is supposed to do.

Financial provisions (Part V of the Bill)

Questions Responses

(1)Are the proposed methods of funding of

the operation of the office adequate and if

not are there other ways of funding that

should be considered?

Methods of funding for operation of the

office of the Coroner are not adequate and

the following ways to fund the office are

recommended:

Tax concessions through assignment

of earmarked taxes e.g. airtime

Levying of fines for not reporting a

death or for late reporting.

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Budget allocation from the treasury

Reinvested cash flows from

operations

Commercialization of the Coroners

Office’s services externally

(regionally /internationally)

Establishing a research institute

towards pathology like how the

School of Mines supports the

Chamber of Mines

(2) Are the proposed safeguards of

financial accountability tight enough to

avoid a misappropriation of public funds

and property?

The Coroners Board should be

responsible for the usage and

distribution of obtained funds.

The decision to invest monies raised

by the Coroners Office should not be

vested in the Chief Coroner alone

but must be subject to the

consideration of other persons.

In terms of section 29(2) - a time

frame must be put for the

submission of financial accounts to

the Minister, i.e. within the first

quarter of each financial year.

Any other recommendations There should be transparency in the

Chief Coroner’s office e.g. public

financial statements should be

gazetted.

There should be a fraud or

complaints procedure and other

methods like a hotline for the public.

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4.2 PLENARY SESSION

The following interventions and discussions ensued after the report back session by the

groups;

Appointment of the Chief Coroner

Concern was raised about the provision that the President is set to appoint the Chief Coroner

by them self. Divergent opinions were given on how best the appointment can be made.

Suggestions included the following;

(i) That the nomination of candidates for that office should be done in consultation with

the Coroners Board.

(ii) The appointment should be made in consultation with the three responsible Ministers.

(iii)The appointment should be done in line with the guidelines given in section 237(1) of

the Constitution.

(iv) That since an inquest court is actually a court as with other courts under the purview

of the MoJLPA, as such the President should make the appointment in consultation

with the Judicial Service Commission or with the advice of relevant medical

professional bodies.

Funding For the Coroners Office

Treasury should fund this office but as it is currently overwhelmed, other sources of funding

such as insurers must be included.

Official employer for the Chief Coroner

The Chief Coroner and the deputy should be public officers and not part of the Civil Service

as informed by section 259(2) of the Constitution.

Covering of Coroners costs by funeral insurance companies

While section 18 of the Burial and Cremations Act, states that the funeral policy should cover

aspects relating to cremations, it is not clear if this is being translated into practice with

funeral insurance companies actually covering such costs. Further, in cases where there is no

need for such services, it is not clear how the money meant for that is used by these

companies. In response, representatives of funeral insurance companies highlighted that the

legal framework governing insurers does not cover this aspect as most insurance policies are

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non-medical policies as insurers do not require people’s health status and thus mostly cover

the funeral only. Further, it is not the funeral company’s mandate to cover things like post

mortems. In the event that there is an allegation of misuse of funds by such companies at the

expense of the insured, then this can be easily uncovered by the Insurance and Pensions

Commission in the reports that it produces regularly.

Extra-territorial jurisdiction of the chief coroner

Each country should apply its own laws in respect of any deaths that occur in that territory

while Zimbabwe will also apply its own laws.

Presence of a family member or representative during a post mortem

This request is usually made when the deceased’s family has no confidence in what the state

is doing in respect of uncovering the cause of death. However, not any family member should

be allowed to witness the post mortem but the family representative should be someone with

a medical background who will be able to give a proper independent opinion to the family.

While the family’s legal representative can be present during such a procedure, they however

cannot really give the required medical opinion.

Accountability for SDD reports

Senior police officers must be the ones mandated with the accountability for these dockets.

Consent for disposal of tissues

International practice is that when a doctor removes a body sample for examination it

becomes part of the record. It is produced to become what is called a block, which is kept by

the processing laboratory. The remaining tissues from the processing are then incinerated

Witness protection in the Bill

The Drafter will consider how to factor this aspect in the Bill.

Chairpersonship of the Coroners Board

Having the Chief Coroner chairing the Coroners Board could stifle the independence of the

board especially in respect of holding the former to account.

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5. CONSOLIDATION OF PROCEEDINGS & CLOSING REMARKS

An IMT Technical Committee Member gave a consolidation of the discussions made during

the two day workshop. It was submitted that the workshop had been highly participatory, and

all views and recommendations were greatly appreciated and would be considered in coming

up with the envisaged legal framework. Furthermore it was submitted that effective

implementation depends on the support that is given at the stage of law making, thus the

participation of relevant stakeholders was key. Assurance was given that once the bill was

law, it would solve a number of challenges spoken about in the two days and that the two

ministries who had convened the workshop, would consider all comments given in coming up

with the final version of the Bill.

Stakeholders were also assured that the MoJLPA through the IMT, remains committed in

aligning laws with the Constitution and in coming up with new laws in line with the

Constitution.

The way forward would be, including the recommendations and comments into the final draft

on course to the Cabinet Committee on Legislation and to Parliament thereafter

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6. LIST OF ANNEXURES

Annex 1- Workshop program

Annex 2- Presentation on the opening remarks

Annex 3- Background to the draft Coroner’s Office Bill

Annex 4- Presentation on the challenges posed by the inquest system of Zimbabwe

Annex 5- presentation on the analysis of the coroner’s office bill-

Annex 6- Attendance register