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. Herald
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