Post-poll vi­o­lence in­quiry team le­git

High Court throws out le­git­i­macy chal­lenge, rules ED acted within the law

The Herald (Zimbabwe) - - Front Page - Daniel Ne­mukuyu Se­nior Court Re­porter

THE High Court in Harare has en­dorsed a Com­mis­sion of In­quiry set up by Pres­i­dent Mnan­gagwa to in­ves­ti­gate the cause of the post-elec­tion vi­o­lence that claimed six lives in Harare’s cen­tral busi­ness district (CBD) on Au­gust 1 this year.

The Com­mis­sion of In­quiry is chaired by for­mer South African Pres­i­dent Kgalema Mot­lanthe, while its other mem­bers are in­ter­na­tional law ex­pert Mr Rod­ney Dixon QC from the United King­dom, for­mer Com­mon­wealth sec­re­tary-gen­eral Chief Emeka Anyaoku from Nige­ria and for­mer Chief of De­fence Forces of the Tanzania Peo­ple’s De­fence Forces Gen­eral (Re­tired) Davis Mwa­mun­yange.

Univer­sity of Zim­babwe (UZ) lec­tur­ers Pro­fes­sors Char­ity Manyeruke and Love­more Mad­huku and for­mer pres­i­dent of the Law So­ci­ety of Zim­babwe (LSZ) Mrs Vim­bai Nyemba, com­plete the com­mis­sion.

Throw­ing out a chal­lenge on the le­git­i­macy of the com­mis­sion by a Harare woman, Ms Al­li­son Charles, Jus­tice David Man­gota ruled that the Pres­i­dent acted within the law in set­ting up the Com­mis­sion of In­quiry.

Jus­tice Man­gota stated that from the arguments placed be­fore him, Pres­i­dent Mnan­gagwa did not de­ploy mem­bers of the de­fence forces on the streets and as such was not con­flicted in ap­point­ing the com­mis­sion­ers.

Ms Charles had ar­gued that since the pow­ers to de­ploy the army vested solely in the Pres­i­dent, he was the one who sent sol­diers on the streets of Harare to deal with the vi­o­lent pro­tes­tors.

She ar­gued that be­ing the de­ploy­ing author­ity, Pres­i­dent Mnan­gagwa was con­flicted and there­fore he should have left the set­ting up the com­mis­sion to in­de­pen­dent com­mis­sions such as the Zim­babwe Hu­man Rights Com­mis­sion (ZHRC) and the Na­tional Peace and Rec­on­cil­i­a­tion Com­mis­sion (NPRC).

How­ever, Jus­tice Man­gota said Pres­i­dent Mnan­gagwa was not in­volved in the de­ploy­ment and that the find­ings of the Com­mis­sion of In­quiry would iden­tify who gave the or­der to the mil­i­tary.

“They (ap­pli­cants) pro­ceed on the premise that, be­cause the Con­sti­tu­tion con­fers power on the Pres­i­dent to de­ploy, he de­ployed mem­bers of the de­fence forces on Au­gust 1, 2018,” ruled Jus­tice Man­gota.

“The cor­rect po­si­tion of the mat­ter is that he did not. Be­cause the Pres­i­dent did not de­ploy, he is not con­flicted as the ap­pli­cants would have the court be­lieve,” he said.

He con­tin­ued; “He also did not vi­o­late Sec­tion 214 of the Con­sti­tu­tion. He, in other words, did not owe a duty to re­port to Par­lia­ment mat­ters which did not arise out of the power which the Con­sti­tu­tion con­fers upon him.

“His moral duty, which arises out of what oc­curred on 1 Au­gust, 2018, was or is to set up the Com­mis­sion of In­quiry, which he es­tab­lished on 14 Septem­ber 2018.”

On the cause of the vi­o­lence, Jus­tice Man­gota said; “He (Pres­i­dent Mnan­gagwa) re­mained alive to the fact that Zim­babwe and the world de­serve a clear state­ment of the causes of the vi­o­lence and the need on the part of the coun­try to de­fine as well as pre­vent such un­for­tu­nate oc­cur­rences in all fu­ture elec­tions. The com­mis­sion, which he set up will, in the full­ness of time, un­earth those.”

Jus­tice Man­gota said Pres­i­dent Mnan­gagwa acted in terms of the Con­sti­tu­tion in ap­point­ing the com­mis­sion­ers and that the Com­mis­sion of In­quiry was valid.

“The com­mis­sion is legally in place. The con­duct of the author­ity which con­sti­tuted it is above re­proach. The com­mis­sion­ers whom the ap­pli­cants seek to im­pugn can­not be im­pugned. At the end of the day, the com­mis­sion will ta­ble the results of its work to Zim­babwe and, by ex­ten­sion, the whole world,” said Jus­tice Man­gota.

“The ap­pli­cants’ case stands on noth­ing. It was a very good aca­demic ex­er­cise which

re­sulted from their le­gal prac­ti­tion­ers’ in­ep­ti­tude. It is de­void of merit. It is, ac­cord­ingly, dis­missed with costs,” he ruled.

He also said the ap­pli­cants had failed to prove that Univer­sity of Zim­babwe lec­tur­ers, Pro­fes­sors Love­more Mad­huku and Char­ity Manyeruke, were bi­ased to­wards Zanu-PF.

“The ap­pli­cants make a state­ment about Prof Char­ity Manyeruke’s al­leged mem­ber­ship of Zanu-PF party. They pro­duced no ev­i­dence which sup­ports the same, nor did they state with suf­fi­cient par­tic­u­lar­ity how her al­leged ear­lier views an­nounced or unan­nounced, would de­tract her from her work as a com­mis­sioner,” ruled the judge.

“The fact that Prof Mad­huku was a pres­i­den­tial as­pi­rant in the elec­tion of 30 July 2018 shows that he can­not be bi­ased in favour of any­one, let alone the first re­spon­dent.

“As a con­tender who did not make it to the high­est of­fice on the land, he has noth­ing to ben­e­fit or lose when he works with the com­mis­sion,” Jus­tice Man­gota said.

The judge said Ms Charles was sim­ply try­ing to de­rail the work of the com­mis­sion.

“I re­main sat­is­fied that the ap­pli­cants were try­ing their luck on what they knew could not hold. Their aim and ob­ject were to de­rail the work of the com­mis­sion of in­quiry.

“They re­mained obliv­i­ous to the fact that the com­mis­sion, which com­prises men and women of re­pute and in­tegrity, and to a larger ex­tent, of in­ter­na­tional char­ac­ter, can­not be in­flu­enced by any­one to fol­low a per­son’s line of think­ing other than to dis­cover what they were con­sti­tuted to achieve,” the judge said.

Jus­tice Man­gota also found that the lawyer rep­re­sent­ing Ms Charles failed to ap­pre­ci­ate the dif­fer­ence be­tween a state­ment is­sued by Pres­i­dent Mnan­gagwa an­nounc­ing his in­ten­tion to set up a Com­mis­sion of In­quiry and the ac­tual gazette pub­lished on Septem­ber 14.

He blasted the lawyers for fail­ing to un­der­stand that the Pres­i­dent merely made an an­nounce­ment in the state­ment of Au­gust 29 but set up the com­mis­sion in terms of the law pub­lished on Septem­ber 14.

“It is, in view of the fore­go­ing, dif­fi­cult if not im­pos­si­ble, to com­pre­hend why such able minds that ar­gued this case failed to dis­tin­guish the state­ment of the first re­spon­dent from the le­gal mech­a­nisms, which he em­ployed to bring the Com­mis­sion of In­quiry into ex­is­tence,” Jus­tice Man­gota ruled.

“They should have prop­erly ad­vised their clients of the im­pro­pri­ety of mov­ing the court to re­view and set aside a state­ment which has no ef­fect on the le­gal process of 14 Septem­ber, 2018. They took the court and the re­spon­dents along a gar­den path which leads to nowhere,” he said.

He de­scribed the ap­pli­ca­tion as a waste of time. Jus­tice Man­gota said only the Pres­i­dent was em­pow­ered, in terms of the law, to set up the Com­mis­sion of In­quiry.

“It is ev­i­dent from the fore­go­ing that the power or author­ity to es­tab­lish a Com­mis­sion of In­quiry is re­posed in the Pres­i­dent. He ex­er­cises the same at his dis­cre­tion. No per­son or author­ity has such power,” he said.

Ms Charles filed the ap­pli­ca­tion in her ca­pac­ity as a rel­a­tive of one of the vic­tims. An or­gan­i­sa­tion called the Coun­selling Ser­vices Unit was the sec­ond ap­pli­cant in the mat­ter.

Pres­i­dent Mnan­gagwa ap­pointed the com­mis­sion af­ter six peo­ple were killed as vi­o­lence erupted in Harare on Au­gust 1 this year as the Zim­babwe Elec­toral Com­mis­sion was an­nounc­ing results of the Pres­i­den­tial elec­tion, which showed Pres­i­dent Mnan­gagwa was headed for vic­tory. Sol­diers were re­port­edly called in to re­in­force po­lice de­ploy­ments who were ap­par­ently over­whelmed by the pro­tes­tors who were de­stroy­ing prop­erty and beat­ing up pedes­tri­ans.

Through their Harare lawyer Chris Mhike, the ap­pli­cants had ar­gued that Pres­i­dent Mnan­gagwa could not set up the Com­mis­sion of In­quiry be­cause he had al­legedly de­ployed the sol­diers.

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