A HIGH Court judge has dismissed as “presumptuous and premature” an application by Zapu, pressure group Ibhetshu LikaZulu Trust and two political activists seeking to block Government and Matabeleland Collective from conducting Gukurahundi exhumations and reburials.
The ruling by Justice Martin Makonese followed an urgent
chamber application filed at the Bulawayo High Court by Zapu, Ibhetshu LikaZulu
Trust and political activists Mr Mbuso Fuzwayo and Mr Charles Thomas, through
their lawyer Mr Nqobani Sithole of Ncube Attorneys, seeking an order
interdicting President Mnangagwa and five other respondents from conducting or
leading any process of exhumation of the bodies of the Gukurahundi victims.
President Mnangagwa, Home Affairs and Cultural Heritage
Minister Kazembe Kazembe, Matabeleland Collective and its executive director Ms
Jennifer Williams, National Peace and Reconciliation Commission (NPRC) and its
chairperson Justice Sello Nare, were cited as respondents.
The application followed last month’s meeting during which
President Mnangagwa met civil society leaders from Matabeleland in Bulawayo as
part of a follow up to previous engagements revolving around several issues
affecting the region, including dialogue towards finding closure to the emotive
Gukurahundi issue.
In his founding affidavit, the applicants’ representative,
Mr Thomas said the process of exhumation and reburials was illegal, arguing
that it was a violation of sections 110 and 111 of the Criminal Law
(Codification and Reform) Act, which criminalises interference with graves and
human remains.
“The graves are crime scenes and as such no one is allowed
at law to interfere with a crime scene as this will contaminate evidence and
impede investigations on the murder of the victims buried in these graves.
Third and fourth respondents (Matabeleland Collective and Ms Williams) have no
mandate to represent me or anyone affected by Gukurahundi. They are on a frolic
of their own and have no blessings of the victims’ families,” he said.
The applicants argued that the exhumations should be
carried out by experts who will be able to identify the remains through DNA
testing. “Disinterment can only be done by a police officer pursuant to the
dictates of the Inquest Act. The exhumed bodies can only be buried after a
death notice has been issued in terms of the law and first examined by a
medical practitioner who must have issued a medical certificate,” said Mr
Thomas.
Justice Makonese dismissed the application saying the court
cannot entertain litigants who rush to court without first exhausting internal
remedies.
“In this case before me, the applicants deliberately failed
to invoke clear constitutional remedies available to them. I am satisfied that
second applicant (Ibhetshu LikaZulu) is not properly before the court. A trust
is represented by its trustees and no meaningful argument was presented to
establish its locus standi,” he said.
Similarly, the judge said Zapu’s application was fatally
defective as it had no resolution attached to the application authorising the
deponent to the founding affidavit.
Justice Makonese said it was presumptuous for the
applicants to allege that President Mnangagwa sought to conduct unlawful
exhumations.
“The suggestion by the applicants is fanciful, scurrilous
and unjustified. Any allegation of an illegal act made against the first
respondent who is the President of the Republic, should not be taken lightly,
more so, when it is shown that the alleged illegal acts have not even
occurred,” said the judge.
Justice Makonese said the applicants did not bother to
enquire on the accuracy of the media reports they relied on as well as how the
purported exhumations would be carried out. He said the applicants should have
first sought the intervention of NPRC chairperson before rushing to the courts
without following the provision of the Constitution.
“The issue of Gukurahundi and exhumations is emotive and
sensitive, which has to be dealt with carefully and in full compliance with the
requirements of the law. It is my finding that this application is presumptuous
and premature, and accordingly dismissed with costs,” ruled the judge.
President Mnangagwa, through Ms Rejoice Hove of the
Attorney-General’s Office, opposed the application, arguing that it was hastily
filed and premature.
Ms Hove said it was extremely presumptuous of the applicants
to attribute “illegal conduct” in the circumstances where there is no criminal
act and where President Mnangagwa has not shown any desire to operate outside
the law.
“In any event, if reliance is placed on media reports, the
article referred to did not state that exhumations would commence in September
2020. The roll out programme as envisaged would take into account the interests
of the stakeholders. A draft policy framework would be laid out before any
exhumations could even begin,” she said.
“Once agreement is reached with stakeholders on a final
policy, only then, can exhumations commence. First respondent (President
Mnangagwa) avers that applicants ought to have gathered the correct facts
before rushing to court on the basis of a newspaper article as no agreement was
reached at the last meeting on 22 August 2020.”
Ms Hove said NPRC is in fact leading the process of
exhumations and all other issues associated with Gukurahundi.
“As Head of State and Government, first respondent is
seized with all issues of national importance and ought to attend meetings at
the invitation of interested parties. He argues that applicants are completely
misleading the court when they allege that he is conducting and leading the
process of disinterment,” she said.
Ms Williams also opposed the application, saying although a
draft exhumation policy was presented during their meeting with President
Mnangagwa, there was never an agreement on the actual exhumations.
NPRC opposed the application, arguing that the applicants
have prematurely approached the court without first exhausting domestic
remedies. The Commission argued that all issued related to Gukurahundi are
covered under section 252 (a) of the Constitution.
“The argument is therefore made that if applicants had any
concerns with issues surrounding the exhumations or any other procedural
issues, they ought to have invoked the provisions of section 252 (f) of the
Constitution, which provides that NPRC chairperson shall have the authority and
competence to receive and consider complaints from the public and to take such
action as it considers appropriate,” argued NPRC.
He held robust discussions with Matabeleland civil groups,
stressing the need for national cohesion and collective efforts in taking the
country forward in line with the new Dispensation’s thrust of collective
engagement towards development.
The President has so far held two meetings with the civil
society under the banner Matabeleland Collective and a separate one with chiefs
to promote national healing.
Matabeleland Collective is a grouping of non-governmental
organisations, faith-based organisations, community-based organisations,
trusts, savings clubs and social movements from Bulawayo, Matabeleland North
and Matabeleland South. Chronicle
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