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December 29, 2019

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Big Saturday Read: Motlanthe Commission – Long on Politics, Short on Law

December 22, 2018

 

The Final Report of the Commission of Inquiry set up to investigate post-election violence was presented to the public by President Mnangagwa on 18 December 2018. This is an analysis of the key findings and recommendations of the Commission, which was chaired by a former President of South Africa, Kgalema Motlanthe (hereafter the Motlanthe Commission or the Commission).

 

Some observers, including foreign heads of states thought the idea of setting up a commission of inquiry was a good idea. Although she was evasive on the issue endorsing the elections,  British Prime Minister Theresa May made positive comments regarding the commission. “He is making an important step in saying that he setup a commission of inquiry into what has happened in relation to the violence,” she said in a television interview during a trip to South Africa last August. “I think that is a very important signal from him about the Zimbabwe he wants to see for the future and a Zimbabwe that is taking the opportunities for its people for the future.”

 

Nevertheless, many others were sceptical. Much of this scepticism stems from the unimpressive history of commissions of inquiry in Zimbabwe. Where they have been established, their output has been locked away in government vaults, never to be seen by members of the public. In other cases, their recommendations have simply been ignored. Some critics thought this particular commission was set up as a public relations exercise after the disastrous killings which completely interrupted and changed the narrative of the election, which Mnangagwa had sold as peaceful and progressive.

 

There were also worries over the impartiality and objectivity of the commission given that the appointing authority (Mnangagwa) was conflicted as he had a role in the deployment of soldiers who shot and killed unarmed civilians. It did not help that he appointed a well-known ZANU PF member who had taken blatantly partisan role during the elections. How could Mnangagwa investigate himself, critics asked. For such voices, the commission was yet another waste of time and taxpayers’ funds.

 

Mnangagwa had promised to make the report public once the exercise was completed. Days before the release, his spokesperson then made comments which suggested that he could withhold the report. After some serious criticism, there was a change of tone. It is worth acknowledging that he has at least stood by his word and published the report as promised. The Commission makes some useful recommendations, including electoral reforms, compensation and consideration of past episodes of political violence. If taken seriously, some of these recommendations can pave way for progress.

 

That said, the list of positives is very thin.     

 

Long on politics, short on legal substance

 

The commission’s report is long on politics and short on law. It is thin on legal detail and analysis of the conduct of the state and individuals. The paucity of detailed analysis and articulation of key legal issues suggests that the document which was put together in a hurry. It was a fact-finding mission, but those facts needed to be characterised and presented in the language of the governing law. In many cases, the Commission stopped short of apportioning responsibility to key actors who should be held accountable at law.

 

The primary legal instrument that should have been used to measure the conduct of the state and other actors is the Constitution of Zimbabwe. As section 2 of the Constitution states, it is the supreme law of the land and any “practice” or “conduct” inconsistent with it is invalid to the extent of the inconsistency. What was under investigation in this case was the conduct of the state and non-state actors, which means the Constitution should have been the core standard of the commission’s analysis.

 

On the few times where the Commission makes reference to the Constitution, it is assessing and justifying the legality of the deployment of the military. However, in other critical areas where the Constitution should have been invoked, the Commission’s report is severely weak and for the most part suspiciously silent, as if the Commission was too timid and therefore unable to call a spade by its proper name. If the commission was prepared to find justification for the military deployment in the Constitution, it ought to have measured the legality of the military’s conduct on the basis of the Constitution.

 

Human Rights

 

One is the conspicuous absence of analysis and articulation of human rights breaches using the Declaration of Rights in Chapter 3 of the Constitution. The moment the commission found that the military and police shot and killed unarmed and fleeing civilians, it should have given a clear articulation of the human rights implications of those actions.

 

Section 44 of the Constitution makes it obligatory for the State and all its institutions and agencies to “respect, protect, promote and fulfil the rights and freedoms”. As for the security services in particular, section 208(2)(d) states that “Neither the security services nor any of their members may, in the exercise of their functions …. (d.) violate the fundamental rights or freedoms of any person.”

 

In light of the commission’s findings which show that human rights were violated, the state failed in these duties. However, this is not articulated with any degree of confidence or clarity in the report. The Commission should have been clear that the State, including the military and police breached sections 44 and 208(2)(d) of the Constitution.

 

On the factual findings of the Commission, there are a number of specific rights which were breached by the State through the military and the police. They include, the right to life (section 48), freedom from cruelty, inhuman and degrading treatment (section 53), right to personal security (section 52), right to human dignity (section 51). None of these rights are sufficiently articulated in the commission’s report. The omissions dilute the blameworthiness of perpetrators of these violations.  

 

In fact, given the presence of international lawyers and international statesmen on the commission, the expectation was that it would use of more international legal instruments to assess various issues, including the duty of the State to uphold basic human rights. The lack of detailed commentary on the legal implications of shooting fleeing and unarmed civilians is embarrassing. Such conduct exposes perpetrators to prosecution at international tribunals and deserved more than the passing commentary made by the Commission.

 

There was also no serious comment on the implications of attempts by the state pathologist to cover up the shootings by first claiming that some of the victims had been stabbed. The Commission notes that this was only changed after relatives of the deceased complained. However, it says nothing of significance regarding the conduct of pathologists who tried this blatant cover-up.

 

Duty to Protect

 

One of the fundamental obligations of the State, which is confirmed by the Constitution is the duty to protect citizens. All states around the world owe this duty to their citizens. Some take it seriously while others are actually a threat to their citizens. Section 35(3) of the Constitution provides that all Zimbabwean citizens are entitled “to the protection of the State wherever they may be”.

 

The Commission rightly found that military and police used excessive force in their attempt to protect public safety. It found that the military and police had killed and injured civilians. Having established these facts, it naturally followed that the State had failed to uphold its duty to protect. However, this important duty and the breach by the State is completely missing from the Commission’s report. A firm, honest and objective report should have been clear on this failure of the State to uphold its duty to protect.

 

Independent Complaints Mechanism

 

The framers of the Constitution anticipated that conflicts and frictions would occur between members of the security services and members of the public. They designed section 210 of the Constitution for the establishment of an independent complaints mechanism, which would consider complaints from the public regarding the conduct of members of the security services. Five years after the Constitution was adopted and a year after Robert Mugabe was removed from power, that independent complaints mechanism is still a pipe-dream. 

 

If that mechanism existed, it would have handled these matters in the same manner that similar mechanisms operate in other countries. There probably would have been no need for a commission of inquiry. The government has just spent thousands of taxpayers’ money on an ad-hoc commission, when it could easily set up an independent complaints mechanism as mandated by the Constitution. Interestingly, the Commission does not specify this omission or make specific recommendation for the setting up of this permanent mechanism to handle public complaints. Zimbabwe is not short of laws or institutions. Rather, it is short of political will to give life to these laws and institutions. 

      

Legality of the deployment

 

The Commission found that the deployment of the military was necessary, justified and lawful. It accepted evidence presented that the deployment was carried out in accordance with the Constitution. According to the Commission, the deployment was justified by the alleged threat to public safety and the finding that police were apparently overwhelmed by the protests. However, this finding raises a number of questions.

 

The first is over the sincerity and honesty of the State at the very highest level. The finding makes light work of a situation that appeared to be shrouded in mystery on the day of the incident and the few weeks that followed. Indeed, one of the lingering questions for many weeks was who exactly had ordered the deployment of the military. Mnangagwa himself had feigned ignorance as to the circumstances surrounding the deployment of the military.

 

At the time, it appeared as if he had played no role in the deployment, which led to speculation that Retired General Constantino Chiwenga who was the Minister of Defence at the relevant time had acted without the president’s authority or knowledge. In fact, because of this vagueness, speculation was rife that Mnangagwa had set up the Commission to exonerate himself and nail his subordinate.  Mnangagwa himself never sought to justify the military deployment which suggested that he was disowning it. In fact, the overwhelming impression he gave was that he was in the dark and he too wanted to know what had actually happened, hence the Commission.

 

The notion that Mnangagwa had not authorised the military deployment gained traction when a High Court judge made direct and unequivocal statements to that effect and Mnangagwa. Nobody in government challenged the version that the judge gave exonerating Mnangagwa from responsibility for the deployment. A relative of the deceased and a civil society organisation had sued Mnangagwa arguing that he was conflicted and should not set up a commission to investigate his own conduct.

 

Commenting on the case, Judge Mangota wrote, “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 1 August 2018. The correct position of the matter is that he did not.” On that basis, Judge Mangota concluded that “Because the President did not deploy, he is not conflicted as the applicants would have the court believe.”

 

The Commission’s finding that Mnangagwa did actually deploy the military presents a very embarrassing situation for Judge Mangota. The commission’s finding is completely contrary to what the judge said. It means Judge Mangota was wrong on the facts. At least the commission was relying on evidence presented by a former senior minister and commanders. Judge Mangota, on the other hand, gave a personal opinion the basis of which is unclear. On the basis of the Commission’s finding, the applicants were right to argue that Mnangagwa was conflicted and should not have set up a commission to investigate himself.

 

However, what if what Judge Mangota said was actually the correct position at the time? As indicated, no one in government challenged the correctness of his statements. If they knew he was wrong, surely they would have said so at the relevant time. If Judge Mangota was right, it means evidence presented to the Commission was manufactured to suit a new narrative that the deployment was authorised by Mnangagwa. This is because if taken to its logical conclusion, Judge Mangota’s position would have exposed someone other than Mnangagwa as having illegally authorised the military deployment.

 

That someone would have been Vice President Chiwenga. Judge Mangota had literally thrown him under the bus. In an outline of sequence of events in the judgment, Judge Mangota wrote, “he (then Minister of Defence, Chiwenga) in turn, dispatched members of the defence forces who worked under the command of the regulating authority of the district of Harare”. Judge Mangota had discounted Mnangagwa from involvement in the deployment, and pointed a finger at Chiwenga. If Judge Mangota’s version was right, has Mnangagwa now taken one for Chiwenga?

 

Maybe the commission should have cleared this up by calling Judge Mangota to explain himself. Indeed, the Commission should have called Mnangagwa himself and heard it from the horses’ mouth. This would have been even more pertinent after former Home Affairs Minister Obert Mpofu had given a different version of events. The glaring omission leaves two contradictory narratives on these crucial events – one by a High Court judge and another by the Commission. An opportunity to clear it up and for Judge Mangota to retract and apologise for his gross error and premature judgment was missed by the Commission. There is no reason why the Commission did not call him to assist it with its investigation.

 

Accounting to Parliament

 

Having found that it was Mnangagwa who deployed the military, the Commission should have inquired into whether the legal requirements were satisfied. Section 214 of the Constitution, which deals with political accountability regarding the deployment of troops requires the President to report to Parliament “promptly and in appropriate detail, of the reasons for their deployment”.

 

Judge Mangota had exonerated Mnangagwa from such a duty after holding that he had not deployed the military. With the Commission finding that he did, it does not report whether he informed Parliament as required by the Constitution. This is important because if he did not inform Parliament it begs the question why he did not do so long after Parliament was convened. (There was no Parliament on the day of deployment but he could have informed it soon after it was sworn in)

 

Did Mnangagwa not inform Parliament because he had not in fact authorised the military deployment and, therefore, had no reason or legal obligation to do so as Judge Mangota had said in his judgment? This could have been easily cleared if the Commission had called the relevant actors, including Mnangagwa himself. Furthermore, one of the findings would have been a breach of the Constitution and a recommendation would have been for the President to abide by the Constitution whenever there is a military deployment. It acknowledges the role of Parliament and strengthens the culture of separation of powers and accountability.

 

A deployment can’t be half-legal

 

While the Commission found that the military deployment was lawful, it also found that there was a violation of the Public Order and Security Act since the deployed soldiers were not placed under the command of the police regulating authority of the district of Harare. This is also another point where the Commission differs with Judge Mangota, who in his judgment had stated that the troops were placed under police command. Embarrassingly, the judge was wrong on the facts.

 

Nevertheless, while the Commission found that they were not placed under police command, it seemed to make light of this illegality, as if it is of no consequence. This leads the Commission to conclude that the deployment was lawful. However, it’s important to be clear that if the deployment breached the law or part of it, it was illegal. It can’t be half-legal and half-illegal.

 

It is a trite principle of law that the legislature does not make a law which it does not intend to have meaning and consequence. Every word carries an intention that must be found and applied. The requirement for the deployed military to be under the command of a police authority is based on sound policy reasons. Police are trained for law enforcement duties and dealing with civilians compared to soldiers. There might even be a plausible link between the rampant use of excessive force which the Commission found and the fact that the operation was under military command and not police command as required by law.

 

In short, the fact that the military deployment was not in accordance with the law is enough for a declaration of illegality. The Commission should have been bold enough to declare this illegality for lack of compliance with the law. Instead it chose to mollycoddle the government, locating itself in the absurd zone of half-lawfulness and half-unlawfulness. A State which has violated human rights will not improve if it is not told that what it did was wrong and illegal.         

 

Excessive Force and embarrassment for the generals

 

While the Commission found that the deployment was lawful, it was damning in its assessment of the force used by the military and the police. It was unjustified and disproportionate, the Commission said in relation to the use of live ammunition on fleeing civilians and the use of physical instruments to assault civilians.

 

To be sure, it would have been absurd in the extreme if the Commission had come to any other conclusion. The entire world had seen what had happened on the day and exonerating the military would have been scandalous.

 

The Commission’s verdict dismisses as false and dishonest, the weak defences and explanations that were given by senior military commanders during the hearings. They had protested that the deaths were not from the actions of their troops whose professionalism they defended. The effect of the Commission’s damning verdict is that these testimonies were false. This is a serious indictment on the integrity of military commanders who had vehemently vouched for the professionalism of their forces. However, resignation on account of embarrassment is not something that exists in the vocabulary of Zimbabwe’s establishment. They will just pretend that the Commission they set up did not say anything.  

 

A witch-hunt?

 

The commission found that the MDC Alliance was responsible for inciting, planning and organising the protests which later turned violent. “The pre-election period was peaceful but the utterances by MDC Alliance leaders at various campaign rallies and press statements to the effect that they would not accept any election result which was not in their favour made the likelihood of post-election violence possible.” The commission held that the “MDC Alliance had taken a position that if their Presidential candidate did not win the election, they would protest; a threat that they implemented.”

 

The fact that the commission blames the MDC Alliance for the protests is not surprising because most critical observers thought it was set up for that mission. After all, the man who established it, Mnangagwa had already passed his verdict that the MDC Alliance was to blame. This is also why opposition critics argued that Mnangagwa was conflicted and should not have had a role in choosing the commissioners or crafting the terms of reference. The composition of the commission, which included notorious ZANU PF cheerleaders also cemented the impression that this was a witch-hunt.

 

Due to the apparent bias and the perception that it was a hatchet job, opposition leaders had opted to stay away from the commission’s hearings. They only attended and gave evidence out of respect after the commission had officially invited them. However, they made it clear that they were attending under protest. There is therefore, nothing new or shocking in the commission’s finding. Many had expected that it would blame the MDC Alliance consistent with Mnangagwa’s earlier claims and in this regard, the Commission did not disappoint.

 

Command Responsibility

 

The Commission’s finding that the deployment was done according to the Constitution might exonerate Vice President Chiwenga from charges of illegality but it shifts and places legal and political responsibility squarely on Mnangagwa’s shoulders. It means he, as Commander-in-Chief, takes ultimate responsibility for the deaths and injuries of civilians at the hands of the police and military.  

 

But this finding raises some interesting questions: Why did Mnangagwa set up the Commission when it now turns out he is the one who deployed the troops and must have known the reasons for that deployment? What did he not know about the operation leading to the deaths of civilians that he wanted investigated? Couldn’t he have just told the nation what had happened instead of spending precious taxpayers’ funds on a Commission of Inquiry? Why did he consider it necessary to set up a commission to investigate his own conduct? Did he not feel conflicted when he set up that commission which investigating his own conduct?

 

As Biti explained in his testimony, South African courts prevented former President Jacob Zuma from setting up a commission to investigate matters in which his own conduct was in issue. Did the absurdity of setting up a commission to investigate one’s own conduct not occur to the President when he was setting up the Commission?

 

It is not surprising that the Commission’s report is conspicuously silent on the principle of command responsibility. It simply says the deaths and injuries arose from the actions of the military and police but no further. What exactly does that mean? When the Commission blames the military and police for causing the deaths and injuries, they are in fat blaming the Commander-in-Chief, although the Commission is too timid to say so in plain terms.

 

Surely, the Commission should have had the guts to specify the command responsibility, right up to the Commander-in-Chief? The doctrine of command responsibility is that a commander or a superior, can be found criminally responsible for the international crimes of their subordinates. Under the doctrine, the commander carries liability for failing to prevent the subordinate from committing criminal acts.

 

The Commission would have enhanced the quality of its work by accurately capturing the nature of the crimes that had been committed in broad daylight. It should have at the very least discussed the notion of command responsibility, rather than focussing on the foot-soldiers.

 

This half-hearted approach towards command responsibility betrays a tinge of timidity on the part of the Commission. There was a military expert on the Commission and a lawyer whose resume suggests he is well-versed in laws relating to the military and international human rights. There was even a former President and therefore, a former Commander-in-Chief who appreciates this chain of command. They all should know the notion of command responsibility and that it must be placed where it belongs and in specific terms. You can’t just pin blame upon the foot-soldiers. You have to deal with those who issue orders.

 

The Commission missed a great opportunity to articulate and apply the doctrine of command responsibility, but then it hadn’t even dealt with the human rights implications of the crimes.

 

Legal Responsibility

 

One legal implication of the Commission’s report is that it makes the State, through the President, military and police officially culpable for the deaths and injuries. The individuals who caused these deaths and injuries can also be sued in their personal capacities. From a legal perspective, the Commission’s verdict lays ground for legal action for damages and other remedies from the State and these individuals. While the President can’t be sued in his personal capacity while still in office, his office is fair game.

 

Historically, the State has been notorious for not honouring claims for damages in human rights cases. However, the case in which Jestina Mukoko who reportedly received damages recently after a successful lawsuit following her torture in 2008 is a flicker of hope. It may have taken a decade but at least the State has paid. Although the Commission has recommended compensation, it is likely to be a pittance and victims should consider legal action if they are not satisfied by what the government offers.

 

The Commission’s finding against the opposition for allegedly inciting protests also opens grounds for possible legal action, especially from those who allege property damage. However, any claimants would have to discharge the burden of proving the existence of a causal link between statements at a rally and actual damage. If such actions were successful, this could open the floodgates and cause havoc to the opposition already struggling for resources. On the other hand, critics might interpret such lawsuits as persecution of the opposition via legal processes.  

 

It must be remembered that in all of these cases, the commission’s standard of proof was on a balance of probabilities and where criminal action is considered against any person, the standard of proof is higher as it must be beyond reasonable doubt.

 

Reward or Punishment by Promotion?

 

Since the Commission also found that the deployment was “half-illegal” as already discussed, it means the military commanders who were in charge of the troops must also take responsibility for their illegal conduct. The Commission makes no mention of the illegality of this conduct and the need for corrective measures to be taken against the authors of illegality.

 

Instead, a rather curious turn of events is that the commander of the troops on August 1, the then Brigadier-General Anselem Sanyatwe was promoted to the rank of Major-General just a day before the release of the Commission’s report. There are competing theories regarding this promotion.

 

An immediate reaction is one of horror at seeing a commander found to have acted illegally being promoted and therefore, seemingly getting a reward for his efforts. From this angle, the promotion is a slap in the face of victims and survivors. Since the President had already read the Commission’s report, promoting Sanyatwe might also be seen as a dismissal of the Commission’s findings. This perspective has much to support it, seeing that ZANU PF has traditionally rewarded perpetrators of political violence. It would confirm the fact that continuities outweigh changes from the Mugabe regime.  

 

However, there is a second theory, informed by the cunning nature of the man at the helm. This view holds that the promotion is a golden parachute – a generous package that is given to a leader who is leaving, usually against his will. On this view, the promotion is a precursor to a departure in the near future. A more plausible variant of this theory is that even if he is not departing from the military, the promotion is a kick upstairs as he is relieved of command of a key and influential military unit, the Presidential Guard and the National Reaction Force. That way, Mnangagwa is strategically realigning the units and command element, opening the y for an ally to take over at the key unit. It would fit into that odd category of cases which might be called punishment by promotion.

 

Which of these is true is hard to tell. Both theories could be completely wrong. However, the optics of promoting the commander of the unit implicated in gross human rights violations are not good for a man who is trying to convince the world that he is progressive. Why would he undermine an institution which he established in order to demonstrate to the world that he is a reformist? It defies logic.

 

Overall, it shows that the political and military commanders are not prepared to take responsibility, even if the commission is their creation. They would have issued apologies within hours of the release, but they chose not to do that.

 

Toxic foundation

 

The commission failed to acknowledge the criticism over its own shortcomings, particularly regarding its composition and terms of reference. These criticisms were brought to the attention of the commission directly during the oral hearings. One of the commissioners was named on more than one occasion as a ZANU PF member. At least one former ZANU PF member made serious allegations against her on the issue of political violence.

 

These criticisms, which were captured in an earlier BSR remain relevant because they affect public perception towards the commission’s output. Faced with such conflicts of interest, these conflicted members could have recused themselves. In the absence of recusal, the least that the commission could have done was to take note of and acknowledge these criticisms. It simply ignored them as if they were of no consequence.  

 

The commission failed to extend its scope of investigation to include events that occurred after 1 August, when soldiers allegedly went around high density areas harassing and assaulting residents. This aspect was not specifically included in the terms of reference. But the commission could have included it under the catch-all term of reference (paragraph (g)) which allowed it to “investigate any other matters which the Commission of Inquiry may deem appropriate or relevant to the inquiry.” It was a missed opportunity to broaden the scope of its investigation which would have given an insight into state-sponsored violence and impunity in Zimbabwe.

 

Conclusion

 

Critics panned the Commission when it was announced. The composition and terms of reference did not give much hope that the Commission would do an effective job. The report looks hurried. It’s thin on detail and analysis of evidence. More significantly, it’s weak on legal aspects which should really be the fulcrum of the report. This was about gross violation of human rights and command responsibility within the context of a State which has traditionally been violent. Yet the report is quite weak on these and other fronts.

 

One hopes the irony is not lost on the system that the first time a report on political violence is officially presented in Zimbabwe, it blames the opposition and paints ZANU PF as the peaceful party. Yet the reality over the last three decades couldn’t be more different – ZANU PF has been the perennial abuser, with the opposition as the victims. This, of course is not the commission’s own making. Its mandate was limited to 1 August and it could not go back to previous political violence within the limited period it was given to complete the task.

 

Yet, the Commission got a taste of the bitterness felt against ZANU PF countrywide. It was so plain that the Commission had no choice but to acknowledge Gukurahundi and recommend national healing and reconciliation. The fact of the matter is that there are two reports currently kept in the government vaults – Dumbutshena and Chihambakwe Reports – also from commissions of inquiries into the 1980s Gukurahundi atrocities. Mnangagwa has the keys to that vault. If he is sincere, he should also make them public.

 

It’s one thing to release a report of a commission you appointed and whose terms of reference you crafted. It’s a different challenge to release a report from a commission appointed by someone else and whose terms of reference or contents you could not control. For as long as such critical reports remain secret, critics will continue to argue that nothing has changed.

 

In the end, it looked like what many critics thought of it at the start: a poor PR stunt. Says, the Commission, which also went out of its mandate to endorse the elections as “free and fair”, “From our wide ranging fact-finding experience in Zimbabwe, we believe that President Mnangagwa is determined to open a new chapter in the policies and activities of the Government of the Republic of Zimbabwe, including the restoration of the country’s diplomatic and commercial relations with the international community.”

 

Regrettably, half the country does not share this rose-tinted opinion. The wider world is also unconvinced. 

 

WaMagaisa

 

wamagaisa@me.com  

 

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