President Mnangagwa has appointed a Commission of Inquiry in terms of the Commissions of Inquiry Act (Chapter 10.07). The commission was prompted by the unlawful killing of civilians by members of the military on 1 August 2018, soon after the general election a couple of days earlier.
The commission will be chaired by Kgalema Motlanthe, former president of South Africa. A former Secretary General of the Commonwealth, Chief Emeka Anyaoku is also a member as is a silk barrister from the U.K. Rodney Dixon QC and a former general of the Tanzanian military, Retired General Davis Mwamunyange.
However, the local members of the commission are contentious choices. One is openly partisan and at least two are conflicted given their interests in the parties or matters under investigation. At least two have also already made statements that are prejudicial to or supportive of parties that may be investigated by the commission. This does not give a good impression of the commission.
Professor Charity Manyeruke is a well-known supporter of ZANU PF and President Mnangagwa. That much is plain and evident in her public statements. She makes no effort to hide her partisan views. She has been cheer-leading Mnangagwa and ZANU PF on both social and public media and has been highly critical of the MDC Alliance and Nelson Chamisa. She is hardly an independent commissioner, even by lowest standards of measurement. The conflict of interest is beyond question.
Another commissioner is Professor Lovemore Madhuku, who was a presidential candidate in the just-ended elections. Technically, he is an interested party in the events arising from and connected to the election - all of which is connected to the matters under investigation. After all the President calls it “post-election violence”. How does a candidate in an election become a member of a commission to investigate violence connected with that election and still be regarded as “independent”?
In any event, as a candidate, he has already made comments critical or judgmental of parties in the matter under investigation. While his credentials are not in doubt, the potential conflict of interest cannot be overlooked.
Vimbai Nyemba is the third local member of the commission. A former president of the Law Society of Zimbabwe, she already holds important roles within the current establishment. Earlier this year, she was appointed Chairperson of the Procurement Regulatory Authority by President Mnangagwa. She was also appointed as a member of another Commission of Inquiry into the sale of State land in urban areas. Vimbai Nyemba is a respected lawyer and dignified person, but this is probably one appointment too many. These are situations where one ought to politely excuse themselves.
Zimbabwe has a large number of professionals and practitioners in various fields who do not necessarily have these close connections to the establishment. Alternatively, the commission could have been more balanced by drawing from members of the clergy or civil society. If one is to appoint a cheerleader of a party, efforts could have been made to counterbalance such an appointment. As it is, the commission starts off with a point of doubt over its objectivity and independence.
The law under which the commission is appointed provides that one of its duties is “to make a full, faithful and impartial inquiry into the matters [under investigation] ...” How does one who is so openly partisan towards the appointing authority make a “full, faithful and impartial inquiry” into any matter in which they have already pre-judged and demonstrated partisanship?
Terms of reference
The terms of reference are designed in a manner which steers the commission towards
investigating “post-election violence” but make no specific reference to the reason purportedly begins the establishment of the commission, which is the killing of civilians. Not once does the statement mention the killing of civilians, which prompted the call for the investigation. Instead, the terms of reference contain a presumption that the appropriateness of the force used must be measured against the “ensuing threat to public safety, law and order”.
Despite the contrived terms, if it wants to be more impartial and effective, the commission can always rely on paragraph (g) which gives it greater latitude and discretion. It allows the commission to “investigate any other matters which the Commission of Inquiry may deem appropriate or relevant to the inquiry”. There is no matter that is out of bounds for the commission even if it is not specified in the terms of reference.
A key term that is missing from the current set is for the commission to investigate and establish the military chain of command in order to identify who gave the authority for the deployment of soldiers and the order to shoot to kill. The commission must investigate whether the execution of this chain of command was in compliance with the Constitution.
Another missing term is the investigation and identification of military personnel who actually shot or bayoneted and killed civilians. If the President wants the commission to identify leaders of the protests, then surely it makes sense to identify leaders who gave commands and the soldiers who shot and killed civilians.
Finally, the commission’s remit seems limited to what happened on 1 August. This is clearly inadequate given that numerous witnesses and reports chronicled beatings and harassment of civilians in urban residential areas days after 1 August. Although the government and military denied involvement or responsibility, these incidences were widely covered by both local and international media. They should be part of the commission’s specific remit. Hopefully, the commission will use the wide latitude it has to investigate this violence against civilians.
Operations of the Commission
The operations of the commission are guided by the Act. Unless otherwise directed the inquiry is held in public. The commission also has the power to make rules and regulations for the conduct of its proceedings.
Critically, the commission has the power to summon witnesses to give evidence or produce material. This is similar to powers of the magistrates’ court to issue a subpoena and summon witnesses to give evidence under oath.
However, witnesses summoned have a right to protection of the law which is guaranteed by the Constitution. This includes the right to silence and protection from self-incrimination, which means one cannot give evidence which would implicate them in a criminal offence. The constitutionality of provisions of section 12 (c.) and (d) of the Act which penalises a witness for refusing to give evidence is doubtful in light of constitutional protections of the right to silence and protection from self-incrimination. A person cannot be penalised for exercising his constitutional rights.
Nevertheless, witnesses who knowingly give false evidence to the commission commit an offence which leads to imprisonment. Likewise persons who show contempt to the commission may be removed and detained and in addition will be guilty of an offence which may lead to imprisonment. Commissioners are given legal immunity in respect of anything done during the course of their official duties.
The constitutional right to legal representation is also specified in section 17 of the Act. It allows anyone whose conduct is the subject of the inquiry or who is implicated concerned in the matter under inquiry to have legal representation. Anyone else who believes it is desirable to have a lawyer may apply to the commission for permission.
Observers will be watching closely how the commission exercises its power to subpoena witnesses and access to records. Will it be audacious enough to call upon the Commander-in-Chief, who is also its appointing authority, as a witness? After all, the Constitution confers sole authority upon the President to deploy the military. It may be necessary for President Mnangagwa to testify whether he did in fact issue an order of deployment. Will the commission summon heads of the military?
If the commission is fit for purpose, there should be no sacred cows. If on the other hand it focuses only on opposition leaders and supporters, it will simply confirm the biases that have already been formed from its composition and terms of reference.
An important issue for this commission is the protection of witnesses. A culture of retribution against political opponents is well-rooted in Zimbabwe. People are generally fearful of the consequences of going against the State. Unless the safety and protection of witnesses are guaranteed, there might be few witnesses who are willing to present evidence against the State or indeed the military. There is a need to build confidence in the process but this is undermined by the local composition of the commission.
At the end of the process, the commission is required to produce a written report to the President. However, there is no guarantee that the report will be made public. In the past, some reports of commissions of inquiry have never been made public. The reports into Gukurahundi in the 1980s, for example, have been kept secret and efforts to get them released through the courts of law have also failed.
In conclusion, the local composition of the commission leaves a lot to be desired. The commission must not only be impartial but it must be seen to be so. Including someone who is openly partisan and another who has an interest in the matters under investigation does not give confidence in the commission. This was an opportunity for President Mnangagwa to chart a new course which could inspire some confidence, but these local choices and the terms of reference have spoiled it. It will be very hard to take the commission's seriously.