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.