Harare regional magistrate Walter Chikwanha yesterday dismissed the request by the Mujuru family to have the remains of the late Retired General Solomon Mujuru exhumed.
Chikwanha said it was not the magistrate’s responsibility to grant the order requested by the Mujuru family lawyer, Thakor Kewada.
The family wanted Mujuru’s remains exhumed to allow South African pathologist Reggie Perumal to carry out a second inquest.
“For the avoidance of doubt, an order for the exhumation of the deceased person is governed by other laws and not the Inquest Act,” Chikwanha said.
“To attempt to deal with issues of this nature will be acting outside the ambit of the Inquest Act and regulations.”
The inquest into the mysterious death of Zimbabwe’s most decorated soldier, whose charred remains were recovered at his Alamein Farm in Beatrice, ended yesterday after 39 witnesses testified.
But, the cause of the inferno and Mujuru’s death last August remained a mystery after all expert witnesses said their findings were not conclusive.
Chikwanha said he would go through the evidence and submit his findings to the Attorney-General’s Office.
He said he had reservations over an opinion by Kewada, who indicated the local forensic pathologist, Gabriel Alvero Gonzalez, failed in his post-mortem examination.
“I have reservations to such an opinion because the law does not permit him to make an opinion or address the court as to the facts as he did,” the magistrate said.
“This is provided for by Rule 4 Sub-rule (2) of the Inquest Rules, Statutory Instrument 129 of 1998 which states that during the inquest proceedings, no person shall be allowed to address the magistrate as to the facts.”
In dismissing the application, Chikwanha said:
“To, therefore, request the court to order further investigations in the form of exhumation of the body before the court has an opportunity to analyse evidence adduced from witnesses and before the court has made a decision as to whether or not there is need for such further investigations, is like putting the cart before the horse.”
Chikwanha said he had made a careful consideration of Kewada’s request, together with the relevant applicable law prompting him to dismiss the application.
Kewada had previously requested the court to allow Perumal to give evidence, but the court deferred its ruling in order to allow Gonzalez to testify first as he was the one who carried out the post-mortem.
After Gonzalez’s testimony, on Friday last week, the magistrate then requested Kewada to avail Perumal’s affidavit so that he could be allowed to give evidence.
However, Kewada informed the court Perumal had already left for South Africa and that he would only be prepared to give evidence if the court issued an exhumation order and allowed him to carry out a second post-mortem.
Chikwanha also castigated Kewada, for delving much into analysing facts instead of assisting the court in leading evidence.
“The address to me by Mr Kewada, as to the fact that Dr Gonzalez did not properly conduct the post-mortem, is inappropriate as it violates rule 4(2) of the Inquest Rules,” he said.
“The role of the lawyers in proceedings of this nature is simply to assist the court on leading evidence from witnesses and clarifying issues by putting questions. The duty to analyse these facts is exclusively left to the magistrate.”
Chikwanha further said even if one were to assume that the law allowed Kewada to address the court as to the facts, the opinion he had made about the local pathologist, Gonzalez, was not shared by the court.
“This is so, because the court is still yet to analyse not only the evidence of the pathologist in isolation, but the totality of all the evidence adduced during the course of the inquiry,” the magistrate said.
“It is only after the analysis of all the evidence that the court will be able to make findings as to what transpired and how the deceased met his death.”
Chikwanha said his findings would, among other things, include a consideration of Gonzalez’s evidence as to whether or not he properly conducted the post-mortem.